State regulators have released draft text of the updates to Cal/OSHA’s Emergency Temporary Standards (ETS) for workplaces, which are scheduled to be in place until a proposed two-year provision takes effect next spring.
Stakeholder review of the ETS began late last month; there has been no public discussion such as an advisory committee, but stakeholders can submit written comments, Robert Moutrie, policy advocate with the California Chamber of Commerce, said in an email response to the Northern California Record.
“Speaking broadly, the business community's concerns about the ETS have not been incorporated into the second readoption - but that is what we expected, given that this readoption is only going to be in effect for three months, so we did not expect Cal/OSHA to make big changes here. Notably, some business input has been taken into account on the draft permanent regulation, which would potentially be voted upon in March of 2022,” Moutrie said. “What surprised us is that there were changes made at all in the second readoption - and the changes seem aimed at eliminating differences in treatment between vaccinated and unvaccinated individuals. We believe these are aimed at breakthrough infections, based on discussions with Cal/OSHA staff.”
Moutrie noted that the second readoption of the COVID-19 emergency regulation would go into effect next January and continue through March 2022.
“At that point, the Cal/OSHA Standards Board will vote on a permanent regulation for COVID-19 - the language of which has been published for public comment already,” Moutrie said.
It remains to be seen how the Cal/OSHA standards intersect with federal OSHA rules.
“Cal/OSHA has expressed their intent to keep the state regulations separate from the anticipated 100+ employee federal regulation,” Moutrie said. “When that federal regulation goes into effect, Cal/OSHA will essentially copy it into the California code, which will take a vote of the Standards Board.
“We anticipate the federal regulation will be made public within the next week, and Cal/OSHA will likely vote on a California equivalent regulation before or at the December meeting.”
The Biden Administration announced a vaccine mandate in September, which is being drawn up by OSHA at the federal level.
“There are two federal rules to know about - 1) the contracting requirement that applies to all companies contracting with the federal government, and 2) the federal OSHA regulation applicable to employers with more than 100 employees,” Moutrie said. “The federal OSHA regulation is anticipated to be released publicly this week, and likely to be published in the federal register and go into effect within the next week or so.”
Moutrie noted that legal challenges have already begun, with a group of Republican attorneys general suing against the contractor mandate.
“We anticipate that similar suits may follow against the OSHA regulation once its text is public and it goes into effect,” Moutrie said.
He added that businesses here need to keep watching the headlines for updates to Cal/OSHA requirements.
“California's COVID-19 workplace regulation is going to change in December, and again in March – so employers need to keep those two changes in mind so as to be ready and informed before they go into effect,” Moutrie said.