As legal challenges to the federal vaccine mandate for companies with more than 100 employees works its way through the courts, California regulators are working to adapt state workplace rules on virus prevention to reflect current developments.
Employers should know about potential ETS (Emergency Temporary Standard) workplace rule updates from Cal/OSHA in December, Robert Moutrie, policy advocate with the California Chamber of Commerce, told the Northern California Record.
“Employers in California, regardless of that federal process, should keep their eye on Cal/OSHA and California legislation,” Moutrie said.
The Cal/OSHA Standards Board is scheduled to meet Dec. 16.
Moutrie noted that even if the federal regulatory process and litigation isn't resolved, California lawmakers could still pass a vaccine mandate, as was proposed late in the last legislative session.
“In many ways that groundwork has been laid for that topic to return in 2022,” Moutrie said. “The big picture step-back is even if the federal mandate does not go into effect, or is held up in court, the state legislature may step forward and put a vaccine mandate on the table in California.”
The federal contractor vaccine mandate, which is being separately challenged in court, may have a better chance of being upheld than the federal OSHA vaccine mandate, Moutrie said.
Until the federal litigation is resolved, which could be several months, Cal/OSHA won’t adopt a vaccine mandate, and it would be up to state lawmakers to pass one.
Meanwhile, the Cal/OSHA Standards Board has been meeting about the California workplace ETS that is up for a second re-adoption in December, which would extend it until mid-April, and there is also potential for a permanent ETS with a two-year sunset clause.
The December version is likely to take steps to address concerns about breakthrough coronavirus cases.
“That means employers need to be ready to provide more testing to vaccinated individuals,” Moutrie said.
Employers are already required to determine workers’ vaccination status in order to meet the compliance requirements of the underlying Cal/OSHA regulation, Moutrie said, although people are not required to be vaccinated.
Monitoring new developments at the federal, state, and local levels is key.
“Changes could come from the federal government in the form of the federal vaccine mandates and that regulation; they can also come from the state legislature in California, and they could come from Cal/OSHA, or local public health departments,” Moutrie said. “And you have to keep an eye on all of them going into 2022, particularly with the recently discovered Omicron variant, which we don’t have real scientific knowledge regarding its risks yet, but that that is going to be of prime concern for regulators and legislators in the next month or two.”
Scientists are working to determine the efficacy of the current vaccines against the Omicron variant, and at least one vaccine manufacturer has announced new testing and study of an Omicron-specific booster candidate.