On November 19, 2020, the board responsible for issuing Cal/OSHA regulations will vote on whether to adopt what would be the first Cal/OSHA regulation of employers concerning COVID-19, in particular. If adopted, the regulation will undoubtedly impose a substantial new layer of obligations on employers to prevent Coronavirus transmission in the workplace and require action when COVID-19 cases arise among employees.
The draft regulation is expected to encompass all workplaces in the state regardless of employers’ size, other than medical offices, certain laboratories, correctional facilities, homeless shelters, drug treatment programs and any employers that Cal/OSHA advises in writing must comply with a different regulation, namely, Cal/OSHA’s Aerosol Transmissible Disease standard.
The draft regulation remains out of public view at this time. Although staff members of the Occupational Safety and Health Standards Board (“Board”) almost certainly have the draft regulation complete or nearly complete by now, neither the draft nor information about its requirements have been released. Under the emergency procedure the Board is following in this instance, and unlike the regular procedure for issuing a new regulation, Cal/OSHA has not formed an advisory committee to receive input from employers, labor and other stakeholders on the proposed regulation well in advance of the Board vote. In fact, the draft regulation will not be released until five days before the Board vote, leaving little time for stakeholders to submit input to Cal/OSHA staff and for staff and Board members to take input into account.
A petition filed on May 20, 2020 with the Board jointly by Worksafe, an advocacy group for workers’ occupational safety and health, and the National Lawyers Guild initiated the process now underway. In particular, Worksafe and the Guild proposed a regulation that reflects the structure of California’s Injury and Illness Prevention Program. Specifically, they suggested a regulation requiring that employers identify in writing specific risks of transmission in the workplace, set out in writing their plan to minimize the risk of transmission and formulate written action plans to implement when actual or potential infections among the workforce arise.
It may be likely that the Board will both adopt on November 19 whatever draft regulation staff prepares and give employers only a short time before the new regulation becomes effective. First, the six members of the Board unanimously approved the petition seeking such a regulation over objections set out in a nine-page report by Board staff recommending against the adoption of any such regulation. The staff report argued that a regulation on the subject was unnecessary as staff found no evidence that businesses were generally out of compliance with COVID-19 guidance from the CDC, Cal/OSHA and other agencies. The report also found that a regulation would unnecessarily burden businesses and “no doubt result in confusion” on the part of employers when agencies update their guidance and new guidance “conflict(s) with the written regulation.” Secondly, given the continuing prevalence of COVID-19 in California, the Board likely feels pressure to take action.
The joint petition of Workforce and the Guild is here. The Board staff’s report and recommendation that the Board deny the petition, issued August 10, 2020, is here. The Board’s decision granting the petition and ordering staff to prepare the draft regulation for consideration at the Board’s November 19 meeting is here.
We are monitoring developments and will update you once the Board acts on the draft regulation.