Cal/OSHA Standards Board Passes Revised Emergency Standard Regulation for COVID-19

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On June 17, 2021, the California Occupational Safety and Health Standards Board (Standards Board), voted and passed its latest set of proposed revisions, with a 5 to 1 vote, to the Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards Regulation (Revised ETS).  This is the first of two opportunities for the Standards Board to readopt the temporary standard after the initial effective period. 

Subsequent to the Standards Board adjourning, Governor Newsom issued Executive Order N-09-21, bypassing the 10-day Office of Administrative Law (OAL) approval period, stating that public health directives and the requirements of the Emergency Temporary Standards should be consistent, and the extended period of misalignment between the Revised ETS and the public health directives burdens employers and causes confusion.  The executive order made the Revised ETS effective upon the filing by the OAL with the Secretary of State, which occurred on the evening of June 17; as a result the Revised ETS took immediate effect.  Once approved and published, the full text will appear in California Code of Regs Title 8, section 3205 et al. 

Our previous article detailing the substance of the Revised ETS, with related resources and guidance is available here.

It was indicated during the meeting that the Revised ETS, as now approved, could remain in effect for up to 210 days, with no further action, and that the Board will also retain the ability throughout that same period to use its second (and final) opportunity to readopt the Revised ETS again.  The Board also suggested that future revisions in a readoption might include returning to more restrictive measures, if data through the fall and into the beginning of the normal flu season suggests new spikes in COVID transmissions rates, which are possible due to new challenges, such as the spread of the Delta variant.  The June 17 Standards Board meeting included emphasis on the perceived need for Cal/OSHA to begin work as soon as possible on a Permanent Infectious Disease Standard.

As decided at its last meeting, the Standards Board will heavily rely on a COVID-19 Subcommittee to work with Cal/OSHA on further proposals and changes to the Revised ETS.  The Subcommittee will provide regular updates at the Standards Board monthly meetings.  The discussion at the June 17 meeting regarding the duties of the Subcommittee suggests it is likely that Cal/OSHA may use updates to the FAQs it publishes, rather than formal modifications, to clarify interpretations of the Revised ETS.  The next meeting for the Subcommittee is set for videoconference on June 21, 2021 at 10:30 am.  The Subcommittee will allow time for input from stakeholders and the liaison of the Division to interpret data to determine if formal changes, corrections or clarifications are needed regarding the Revised ETS.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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