Cal/OSHA Standards Board Reschedules Vote on COVID-19 Emergency Temporary Standard Revisions

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On May 20, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA) decided to table the expected vote on Cal/OSHA’s revisions to its COVID-19 Emergency Temporary Standard (ETS). Instead, the Standards Board requested that Cal/OSHA draft a new proposed regulation for the Standard Board’s consideration during a special June 3, 2021, meeting.

Cal/OSHA had drafted and published a proposed revision to the COVID-19 ETS, and the Standards Board planned to vote on the revision on May 20, 2021. At the last minute, however, on May 19, 2021, Cal/OSHA requested that the Standards Board not vote on the proposal. Instead of voting on the proposed revision during its May 20, 2021, meeting, the Standards Board heard public comment about the issues for more than three hours.

During the public comments section of the meeting, labor advocates, including WorkSafe, Inc., California Rural Legal Assistance, Inc. (CRLA), and the California Nurses Association spoke in support of more stringent COVID-19 regulations with continued use of face masks and social distancing protocols even for vaccinated individuals. The groups generally discounted recent updated guidelines from the U.S. Centers for Disease Control and Prevention (CDC) for vaccinated individuals and the easing of  mask wearing requirements. CRLA expressed concerns regarding falsification of employer vaccination recordkeeping.

California employer representatives, including Katie Hansen from the California Restaurant Association, Robert Moutrie from the California Chamber of Commerce, and Helen Cleary from Phylmar Regulatory Roundtable, all requested that the Standards Board table the vote and explained their concerns about vague definitions, the N95 masks proposals, and difficulties with vaccination documentation. Employer representatives repeatedly expressed concerns that obtaining N95 masks would be problematic and would compete with the needs of healthcare providers and first responders to purchase N95 masks. We (Kevin D. Bland and Karen F. Tynan), as members of Ogletree Deakins’ Workplace Safety and Health Practice Group,  testified during the public comments and requested more specific regulatory definitions, greater consideration of vaccinations as a preventive measure, and removal of the N95 mask requirements.

Following public comments, the Standards Board members discussed their individual preferences and decided to table the agenda item, until the June 3, 2021, meeting and vote. Cal/OSHA represented that it would publish a revised proposed regulation on May 28, 2021. Employers will have the ability to offer written public comment from May 28, 2021, through June 3, 2021. Employers will also have the opportunity to offer verbal testimony at the June 3, 2021, Standards Board meeting.

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