Surprise Flip Flop at Cal/OSHA Standards Board: Motion to Adopt Sweeping Changes to the COVID-19 Emergency Temporary Standard Passes

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

On June 3, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA) was initially unable to pass the proposed changes to the COVID-19 Emergency Temporary Standard (ETS)  after a daylong online hearing with more than 500 individuals logged on to the meeting and 5 hours of public comment. The Standards Board had previously decided to table the expected vote on Cal/OSHA’s revisions to its COVID-19 ETS at their May 20, 2021, meeting and requested an updated revision for the June 3, 2021, vote. After a break in the proceedings, the Board agreed to have another vote and passed the proposed regulation in a stunning turn of events.

Deputy Chief Berg’s Introduction

Eric Berg, Cal/OSHA’s deputy chief, began the substantive part of the meeting and described the revisions in positive terms and opined that the proposed revisions are consistent with the California Department of Public Health’s (CDPH) current advice and Governor Newsom’s plans for a June 15, 2021, reopening.

Public Comments at the Hearing

During the public comments section of the meeting, many individuals unassociated with particular groups took the vast majority of the time. Many commenters compared California to other states such as Texas and Florida that have had fewer and less restrictive workplace regulations. Because the meeting was held with an online platform, the meeting chat function was bustling with criticisms of Cal/OSHA, N95 mask requirements, and COVID-19 vaccines generally. California employer representatives, Robert Moutrie from the California Chamber of Commerce, Helen Cleary from Phylmar Regulatory Roundtable, and many other employer groups expressed concerns on issues ranging from the N95 mask requirements, difficulties with vaccination documentation, recordkeeping obligations, and inconsistencies with CDPH COVID-19 guidance.

During the public comment portion of the hearing, we (Kevin D. Bland and Karen F. Tynan), as members and representatives of Ogletree Deakins’ Workplace Safety and Health Practice Group, testified and expressed our concerns regarding California employers’ abilities to obtain N95 masks, employers’ obligations to implement respiratory protection plans, the burdensome vaccination recordkeeping requirements, and inconsistencies with CDPH current directives and advice.

Highlights From the Board Discussion

Occupational Safety & Health Standards Board Chair David Thomas was not able to even begin Board discussion and supplemental information from Eric Berg until after 5 p.m. Pacific because of the extensive public comment on the proposed ETS. Following public comments, the Standards Board members discussed their individual preferences and opinions.

  • Board member Kate Crawford found that the Cal/OSHA requested delay did not lead to revisions that are consistent with CDPH guidelines. She recommended that a better draft revision be submitted, and the vote be delayed.
  • Dave Harrison expressed his dedication as a member of the board and his concern regarding N95 supplies.
  • Chris Laszcz-Davis voiced concerns regarding the practicality of the use of N95 masks and the real world application of N95 requirements.
  • Barbara Burgel voiced support for the proposed revisions and the need for the revisions in order to protect worker health.
  • Nola J. Kennedy agreed with Kate Crawford that the proposal was inadequate and asked for a delay.
  • Chairperson Thomas recognized that N95 masks are uncomfortable and a contentious issue.
  • Laura Stock pressed for a vote and commented that the November 30, 2020, ETS was successful for California and worked well.

After a meandering board discussion, the board finally voted at 6:30 pm with a Motion to Accept the Proposed Revisions to the ETS by Stock and a second by Burgel. There was a tie vote, 4-to-4. The motion did not carry. After a 10-minute break, Chairperson Thomas proposed a revote and the formation of a 3-person sub-committee to explore further revisions. The second vote on whether to adopt the proposed regulation succeeded. Therefore, the current ETS remains the applicable regulation and, the revisions to the ETS will be operable on June 15, 2021.

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