Cal Safety Standards Board approves second COVID-19 ETS

Late last week, the California Occupational Safety and Health Standards Board (“Standards Board”) reconvened in a public meeting to consider the California Division of Occupational Safety and Health (Cal/OSHA) revised COVID-19 Prevention Emergency Temporary Standard (ETS).  The new proposed ETS was developed to replace the existing ETS that has been in place since December 1, 2020.

A prior draft of the ETS was initially to be considered in a May meeting, but it was tabled to allow Cal/OSHA the opportunity for revisions to align with State and the Centers for Disease Control (CDC) guidance.  Cal/OSHA made a few revisions to the prior draft of the ETS, the most important of which are detailed below:

  • The physical distancing section has been simplified.  As was the case with the prior version of the ETS, physical distancing is still only required for all employees until July 31.  From the passage date until July 31st,  employers have the option to: (1) ensure distancing; or (2) provide unvaccinated employees with respirators for voluntary use.  The distancing requirements (if that option is selected) are similar to the previous requirements.
  • There is a requirement to maintain physical distancing when a face covering is required but not worn, but only if the face covering is not worn for either of two very specific reasons, (1) where an employee cannot wear a face covering due to a medical condition or (2) where specific tasks cannot feasibly be performed with a face covering.  The other exceptions to the face covering requirements do not trigger this physical distancing requirement.
  • The requirement to evaluate the need for respiratory protection when distancing cannot be maintained prior to July 31 has been removed.
  • Cal/OSHA has added “outdoor mega events” as a defined term and has added new requirements for outdoor mega events that are similar to those for employees working indoors with a few notable exceptions.  An outdoor mega event is defined as an outdoor event with 10,000+ participants (g., theme parks, concerts, etc.).
  • The exception that previously excluded fully vaccinated individuals from becoming COVID-19 cases has been removed.  Importantly, however, the exception from excluding fully vaccinated individuals who have had close contact remains unchanged.

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Consultation on the European Commission’s planned new regulations on mobile phones and tablets now open

On 31 May 2021 the EU Commission opened up the public consultation period for its dual proposal for regulations on mobile phones and tablets.

As we discussed in our earlier blog post “EU EHS and Product Compliance laws: what to look out for in 2021”, at the end of 2020 the Commission announced its intention to develop two new EU-wide regulations aimed at reducing the environmental impact of mobile phones and tablets. These new legislative instruments will be established under the already existing Ecodesign Directive and the Energy Labelling Regulation, adding another category of products to those currently caught by these “framework” regimes.

The Commission has indicated these regulations will be developed in accordance with the commitments made through the EU Green Deal, in particular under the Circular Economy Action Plan (CEAP). One of the CEAP’s main aims is to ensure that products are designed and produced in a way that contributes to the circular economy, with the goal to keep resources in the EU economy for as long as possible.

In respect of both proposed regulations, the Commission has identified some priority areas for regulatory intervention, which are likely to be incorporated into any draft legislation down the line. These include steps to ensure greater “repairability” of devices, such as: battery accessibility and longevity, the ability of products to be disassembled, and the availability of spare parts, among other things.

The public consultation for the proposed Ecodesign regulation is available here, and public consultation for the equivalent Energy Labelling initiative is available here.

The timeframe for both consultation periods is 31 May – 23 August 2021, with Commission adoption of draft legislation planned for Q2 2022.

Texas keeps the gas taps flowing, but will others do the same as energy infrastructure takes center stage?

The regular session of the Texas Legislature came to a fraught end on May 31, 2021. The political spectacle in recent days capped off a legislative session dramatically interrupted by a winter storm in February that crippled much of the state with snow, ice, and power outages. That natural disaster led to intense scrutiny of the state’s power distribution infrastructure and calls to weatherize the power grid.

In response, the Texas Legislature approved legislation aimed at addressing some of the infrastructure issues caused by the storm. The Legislature’s response to the storm understandably received much attention. Perhaps this allowed another energy infrastructure bill—one that makes a big statement in terms of energy and climate policy—to pass without similar attention.

House Bill 17 passed the Texas Legislature earlier this year and was signed into law by Governor Abbott on May 18, 2021. The law prohibits Texas localities from restricting or discriminating against utility infrastructure based on the type or source of the energy delivered to the end-use customer. The law also prohibits Texas localities from imposing additional charges on development and building permit applicants that encourage or discourage the installation of infrastructure based on the type or source of energy. While not expressly stated, the intent of the bill is to prohibit localities from phasing out natural gas and its infrastructure.

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EU Commission avoids answering questions on the details of its plans to establish a “right to repair”

The EU Commission’s commitment to establish a “right to repair” as part of its Circular Economy Action Plan has led to much speculation about what exactly that might entail. While the Commission has not yet revealed many details of its plans, it has confirmed it is considering implementing a “repairability scoring system”, similar to the repairability index recently established under the French CE law.

On 17 March 2021, the following question was posed by a member of the European Parliament to the Commission:

Last November, Parliament adopted a resolution calling on the Commission to introduce a legislative proposal regulating the ‘right to repair’. In pursuit of a more sustainable single market, the Commission presented its new Circular Economy Action Plan, pointing to the further development of the ‘right to repair’.

  1. Is the Commission considering the solutions that have already been implemented in some Member States, such as the ‘repairability index’ introduced by France?
  2. How does the Commission envisage the coexistence of national systems alongside an EU-wide system that is yet to be defined?
  3. Is the Commission considering setting up a system similar to that in place for energy efficiency, with a scale of colours and letters, to make it easier for consumers to understand?

The Commission has now responded to these questions (on 25 May 2021). Unsurprisingly perhaps, its response gives very little away. The Commission merely stated that it is currently working to identify the most effective approach, and that a colour-coded labelling system is being contemplated. Further, the Commission ducked the important second question and simply indicated that it intends to consider how an EU-level law will operate in the context of existing, similar obligations in place at the member state level, and that this will be fleshed out in an impact assessment which will be published prior to any proposed legislation. The Commission’s full response is as follows:

As part of its commitment to establish a ‘right to repair’ the Commission is considering different solutions that place consumers in the position to choose reparable and durable products, including the possibility to introduce a reparability scoring system comparable to the index introduced by France.

To this end, the Joint Research Centre has performed an extensive study on reparability and the development of a scoring system for repair and upgrade of products. An additional study on the effects of reparability scoring on consumer behaviour was carried out in 2020, of which the outcome was published in February 2021. Colour coding was one of the analysed options for the presentation of reparability scores. The study on consumer behaviour concluded that providing reparability information through a scoring system is effective in guiding product choices of consumers towards more reparable products.

Based, among others, on the outcome of the abovementioned studies the Commission is considering different means to implement a reparability-scoring index. A possible proposal would be preceded by an impact assessment which, in accordance with the better regulation guidelines, would also consider the added value of EU action as opposed to action at the national level.

Plainly the second question is a key question and it would be wholly impractical for companies supplying goods across the EU to be faced with a patchwork system of scoring and labelling requirements. Whilst the Commission may not wish to admit it just yet, it seems inevitable that the Commission will have to introduce a harmonised system that will eventually trump any inconsistent member state scheme.

European Commission unveils CLP and REACH revision roadmaps

On 4 May 2021, the European Commission (“the Commission”) published two important roadmaps to revise two of the main instruments comprising the existing EU chemicals legislation, these being the Classification, Labelling and Packaging Regulation (“CLP”) and the EU Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”). The roadmaps can be accessed here. These revisions form part of the EU’s Chemicals Strategy for Sustainability (“the Chemicals Strategy) to achieve the EU Green Deal’s zero pollution ambition for a toxic-free environment.

The draft revisions are expected to take until 2022 to be published, with the objective to improve the protection of people and the environment against hazardous chemicals in line with the Green Deal’s ambitions. Equally, the EU wishes to seize this opportunity to cement its status as a global leader in chemicals production and use. However, questions remain as to the exact scope of the revision plan for both of these pieces of legislation. A brief overview of the plans for both is set out below. Continue Reading

Cal Safety Standards Board defers voting on second COVID-19 ETS until June

Earlier today, the California Occupational Safety and Health Standards Board held a public meeting to consider, among other items, the California Division of Occupational Safety and Health (Cal/OSHA) revised COVID-19 Prevention Emergency Temporary Standard (ETS), which was developed to replace the existing ETS that has been in place since December 1, 2020.

During the initial portion of the meeting, the Standards Board heard comments from the public and various stakeholders, who, as during previous public meetings, advocated for and against continued restrictions in the workplace. Following the public comment portion, Eric Berg on behalf of Cal/OSHA described the timeline of the agency developing the rule and finalizing its draft revised ETS.  In particular Berg noted that, after the rule was developed, the Centers for Disease Control and Prevention (CDC) issued new guidance that vaccinated individuals could go without masks indoors, followed by the California Department of Public Health (CDPH) announcement that it would implement the same guidance on June 15, 2021.  This caused Cal/OSHA last night to send a memorandum to the Standards Board requesting that the Board not adopt the revised ETS because the agency wanted to have the opportunity to revisit the proposed rule in light of the updated CDC guidance, and re-submit a proposed rule at a future date.  Berg reiterated this request during the meeting, indicating that Cal/OSHA would like to target implementing a revised draft of the ETS on June 15, to coincide with the governor’s lifting of mask requirements.

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Cal-OSHA proposes changes to COVID-19 emergency regulation

With vaccination rates on a rise, the California Department of Occupational Safety and Health (“Cal-OSHA”) have proposed revisions to the COVID-19 Emergency Temporary Standards (“ETS”).  On May 20, 2021, the California Occupational Safety and Health Standards Board is expected to decide on whether to send the draft revisions to the Office of Administrative Law (“OAL”).  If these revisions are received by the OAL, they are only required to allow 5 calendar days for submission of comments and 10 calendar days for review before filing with the Secretary of State. Therefore, the potential new COVID-19 emergency regulation amendments could become effective by early June.

Read our full summary about these new developments in our Employment Law Watch blog.

ESG Update: At a glance summary of proposed Corporate Sustainability Reporting Directive

In our previous ESG Update blog, we described what the then anticipated new EU-wide Sustainable Corporate Governance requirements might look like.

On 21 April, The European Commission published a draft of the proposed new Corporate Sustainability Reporting Directive (CSRD). It will completely replace and significantly expand the scope of the current EU Non-Financial Reporting Directive. This short blog summarises its key features. Continue Reading

Upcoming hearing regarding new marijuana smoke and THC Proposition 65 warnings

As we reported earlier, the California Office of Environmental Health Hazard Assessment (OEHHA) seeks to amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) by adopting tailored safe harbor warnings for cannabis (marijuana) smoke and delta-9-tetrahydrocannabinol (delta-9-THC) exposures.  OEHHA has now scheduled a virtual public hearing on May 10, 2021 at 1:00 p.m.  Accordingly, the public comment period for this proposed action has been extended; written comment submissions must be received by May 24, 2021.

Relevant for stakeholders, per a recent review of Proposition 65 Notices of Violations (“NOVs”) for the first quarter of 2021, Marijuana Smoke and THC have only been noticed twice. However, the amount of NOVs for Marijuana Smoke and THC is likely to rise once the new warnings are implemented.

California Proposition 65 updates regarding cooked or heat processed foods

The California Office of Environmental Health Hazard Assessment (“OEHHA”) recently modified the text of its proposed Proposition 65 regulation regarding warnings for chemicals formed in foods by cooking or heat processing (most frequently associated with the formation of the carcinogen acrylamide during the cooking process).  OEHHA removed two food categories from the warning requirement (almond butter and prune juice) in response to comments received on its earlier proposal, as well as making some other minor clarifications. The public comment period on the modified amendments will close on May 7, 2021. See here for our earlier analysis on this important update to Proposition 65.

Per a recent review of Proposition 65 Notices of Violations (“NOVs”) for the first quarter of 2021, acrylamide is in the top three of most frequently noticed chemicals (190 total NOVs).