Understanding the Current Status of Multiple ETSs – Both Federal and California

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It has been a difficult couple of months for California employers seeking to navigate planning for possible changes to their workplace safety plans, in view of multiple new sources of potential obligations.  While there are many competing considerations that may affect planning, including new federal requirements stemming from President Biden’s COVID-19 Action Plan, California employers are well served to remember that the requirements of the Cal/OSHA COVID-19 Emergency Temporary Standard (CA ETS), as amended and re-adopted on June 17, 2021, remain in effect.  Further, California employers should be aware that Cal/OSHA remains committed to extending the CA ETS into mid-April 2022, at which time it seeks to adopt a Permanent Infectious Disease Standard.

Three Separate Developments All Associated with an “ETS” Create Unnecessary Confusion

The acronym ETS simply refers to an Emergency Temporary Standard.  There are three separate paths that are useful to separate when considering the current status of what obligations apply now or may apply in the near future.

1.  Federal ETS – Aimed at Requiring Vaccination 

On September 9, 2021, President Biden announced his COVID-19 Action Plan, calling upon federal OSHA to promulgate an ETS.  On November 4, 2021, OSHA released this ETS—the “federal ETS”—that would require employers of 100 or more employees to implement policies requiring vaccination of their employees, with accommodations for qualifying medial/religious reasons, and an alternative to apply weekly testing and other safety measures in regard to employees who remain not fully vaccinated.  The federal ETS became effective immediately on November 5, 2021 when it was published in the Federal Register

The federal ETS did not immediately apply to California because California is a state with its own state OSHA plan.  State-Plan states like California instead were required to implement their own standards within 30 days, to provide identical or similar measures that would be at least as effective as the federal ETS.

On November 8, 2021, Cal/OSHA placed an item on its agenda for the November 18, 2021 meeting, to consider approval of a so-called “Horcher proposal” that would consist of adopting a state standard identical to or at least as effective as the federal ETS.  This occurred even though the U.S. Court of Appeals for the Fifth Circuit (in Texas) had issued a temporary stay on the federal ETS on November 6, 2021.  However, after the Fifth Circuit extended the stay in a decision published on November 12, 2021, federal OSHA announced it was suspending any further implementation or enforcement of the federal ETS.  This action stopped the 30-day clock that had been running since November 5, 2021, for Cal/OSHA to adopt an ETS identical to or at least as effective as the federal ETS.

As a result, Cal/OSHA removed from its agenda for November 18, 2021, the item that had previously been set for it to approve a new ETS modeled on the federal ETS aimed primarily at requiring vaccination.  No draft text for whatever California may have adopted was published.  At the November 18 meeting, the California Division of Occupational Safety and Health (DOSH) stated that it will await the outcome of the federal litigation challenging the federal ETS before considering what further step to take, if any, in response to the federal ETS.1

2.  CA ETS – Not Aimed at Requiring Vaccination

The Cal/OSHA Standards Board first adopted a COVID-19 ETS on November 30, 2020.  That ETS—the “CA ETS”—was amended and re-adopted on June 17, 2021.  It remains in effect.  Unlike the federal ETS, the CA ETS is not aimed primarily at requiring vaccination.  It contains no provisions that purport to require any person be vaccinated, and instead consists of other workplace safety standards relating to COVID-19, including some distinctions that may be based on a worker’s vaccination status.  Hence, even if the judicial stay of the federal ETS had not occurred, and if Cal/OSHA had approved some equivalent to the federal ETS at its November 18, 2021 meeting, this would have been a separate ETS primarily aimed at requiring vaccination—not a replacement of the existing CA ETS, but an additional measure or “ETS” required within 30 days of the federal ETS in order to remain a State-Plan state.

The second re-adoption of the CA ETS remains a primary Cal/OSHA objective.  When the Cal/OSHA Standards Board met on November 18, 2021, DOSH confirmed that it still plans to seek a decision at the next Board meeting on December 16, 2021, whether to approve a second re-adoption of the CA ETS, which is anticipated to include further amendments.  The Division stated during the meeting that further revisions to a final text for the second re-adoption remain ongoing, but that this text will be published no later than five days before the meeting on December 16, 2021, in order to meet procedural requirements.  DOSH stated that, if approved, this second re-adoption would become effective on January 14, 2022, when the current CA ETS (i.e., the first re-adoption) expires. This would permit the second re-adoption of the CA ETS to remain in effect for 90 days—into mid-April 2022. 

3.  Permanent Infectious Disease Standard Arising from CA ETS Remains a Primary Cal/OSHA Objective 

DOSH has repeatedly stated, and reiterated during the meeting on November 18, 2021, that these extensions of the CA ETS are intended to achieve the maximum legally permissible time allowance of the CA ETS, in order to facilitate the goal of adopting a Permanent Infectious Disease Standard before the expiration of the CA ETS.

The substantive provisions of a potential Permanent Infectious Disease Standard are a very active area of current input from the public and stakeholders, following Cal/OSHA’s initial publication on September 17, 2021 of initial draft text.  In various subsequent meetings, DOSH has acknowledged it is actively revising the draft based on further discussion and analysis.

In addition, shortly before the November 18 meeting, the Western Steel Council filed a petition with the Cal/OSHA Standards Board seeking to eliminate the entire CA ETS and instead amend the Injury Illness and Prevention (IIPP) Standard to incorporate as workplace requirements under Cal/OSHA’s purview current guidance from the California Department of Public Health, when coupled with executive orders that would tie the standard to a current public health crisis.

Numerous stakeholders during the November 18 meeting expressed enthusiastic support for the proposal to jettison the CA ETS approach and instead revise the IIPP Standard to permit it to incorporate CDPH guidance.  Doing so, proponents asserted, would provide a much more flexible structure adaptable to fluctuating underlying health care data in the context of a public health emergency. 

Other stakeholders expressed opposition to this proposal, asserting that a critical component of the CA ETS has been the provision requiring full pay while workers are excluded from the workforce due to COVID infection or exposure.

After lengthy discussion of whether the IIPP proposal might be added as a decision item to the agenda for the December 16, 2021 meeting, the Board ultimately reached a compromise to add it only as a discussion item, rather than a decision item, leaving the second re-adoption of the CA ETS as the pending decision item on the calendar for the next meeting.

What’s Next?

California employers should continue to comply with the provisions of the CA ETS in its current form.  The issuance of the federal ETS, and its subsequent stay in federal court, do not affect the CA ETS.  Employers should also expect that Cal/OSHA will approve an amended CA ETS on December 16, 2021, which DOSH intends to make effective on January 14, 2021 and to apply for 90 days thereafter, and be prepared for the likelihood that DOSH will present a proposed Permanent Infectious Disease Standard in mid-March, so that it may be approved in time to become effective before the expiration of the CA ETS.  We will continue to monitor developments regarding the substantive provisions that will be proposed for each of these steps.  California employers should remain attentive to these developments and consult with counsel regarding how best to navigate these highly dynamic waters.

Footnotes

1 On November 16, 2021, all pending federal court challenges to the federal ETS were consolidated and assigned to the Sixth Circuit for resolution, after that circuit was randomly selected by the United States Judicial Panel on Multidistrict Litigation.

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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