California continues to move forward with new proposals for regulation and enforcement of workplace hazards associated with COVID-19. As the Division of Occupational Safety and Health (“Cal/OSHA”) continues to develop a draft permanent standard to address COVID-19 hazards in cooperation with an advisory committee of various stakeholder groups, state legislators have proposed a senate bill to increase enforcement of “willful” violations on a per-employee basis.
Emergency temporary standard and permanent rule
Earlier this month, Cal/OSHA convened an advisory committee to provide input on possible changes to the COVID-19 Emergency Temporary Standard (“ETS”). Over the course of three days of public meetings, the advisory committee discussed and debated potential clarifications as well as broadening or narrowing the scope of certain requirements. Although no decisions were made during the meetings, the following were areas of focus where we can expect to see some changes to the ETS:
- Definition of “COVID-19 case” may be changed to remove subsection 2(B) language establishing when someone is no longer a COVID-19 case and instead include these in the body of the rule where “COVID-19 case” is used;
- Definition of “COVID-19 exposure” may include an exception when respiratory protection is worn in accordance with Section 5144;
- Definition of “work site” clarified or potentially changed to “exposed group” to define the extent of notifications and quarantining required as not being geographic in nature, but instead focused on the exposed employees, and may include a temporal element and/or exclude contact in passing;
- Definition of “face covering” changed to whatever the CDPH ultimately decides on as a definition, but tentatively including a requirement of “two to three” layers (although several members of the advisory committee pushed back on that as confusing);
- Definition of “high-risk exposure period” aligned with AB685 definition of “infectious period;”
- Added definition of “worksite” as “the building, store, facility, agricultural field, or other location where a COVID-19 case was present during the high risk exposure period. It does not apply to buildings, floors, or other locations of the employer that a COVID-19 case did not enter;”
- The exception for “places of employment” with one worker changed to “work locations” to capture more types of lone workers (e.g., employees in a vehicle);
- Adding more language to the employee participation requirement to clarify what is required, although Cal/OSHA wants the requirement to be flexible for employers;
- Change employee notice requirement to apply to contacts with actual COVID-19 cases, rather than a “potential” exposure;
- Change engineering controls requirements regarding fixed work locations to fixed work stations to capture specific stationary roles;
- Changing “possible” to “feasible” throughout;
- Multiple committee members expressed concern regarding lack of clarity around the benefits requirements, including because there may be a lack of legal basis for requiring use of other benefits;
- Exemptions that would allow for shortened quarantine and return to work requirements for asymptomatic critical infrastructure workers in specific industries (health care, emergency response, face-to-face social service);
- For outbreak testing, adding a 90-day exemption for employees who have tested positive;
- Adding sections addressing vaccinations and possible exemptions from certain requirements based on workforce vaccination;
- Respiratory protection requirements expansion or relaxing other requirements based on required respiratory protection; and
- Changes to employer-provided transportation requirements, including expansion to inter-facility transportation and exemptions for employees wearing respirators.
In addition, there were several suggestions to incorporate the CDC guidelines by reference to avoid being out of sync as recommendations evolve. However, Cal/OSHA indicated that it is not allowed to incorporate other agencies’ requirements by reference. One commenter suggested Cal/OSHA implement a provision similar to that in Virginia, which indicates that compliance with CDC guidelines will be considered compliance with the regulation. Cal/OSHA has taken the comment along with all others under consideration.
A discussion draft ETS is available here; however, Cal/OSHA has not published the working redlined version including comments from the meetings.
Enforcement under Senate Bill 606
A newly proposed Senate Bill 606 (“SB 606”) in California seeks to increase Cal/OSHA’s enforcement for COVID-19 related infractions, target large employers, and encourage worker reporting of unsafe conditions. SB 606 would create new Labor Code Sections 6317.8, 6317.10, and 6409.7.
As proposed, SB 606 requires Cal/OSHA to cite employers for each exposed employee as a separate violation where the employer willfully violates a safety standard and qualifies as an “egregious employer,” defined as one that has demonstrated “one or more” of the below characteristics:
- The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.
- The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses.
- The violations resulted in persistently high rates of worker injuries or illnesses.
- The employer has an extensive history of prior violations of this part.
- The employer has intentionally disregarded their health and safety responsibilities.
- The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties under this part.
- The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that may be in place.
Cal/OSHA’s current maximum penalty for a willful citation is $132,765, which could be multiplied across the workforce under the draft SB 606.
The bill also seeks to increase enforcement for enterprise-wide policies and programs, authorizing Cal/OSHA to issue citations, seek temporary restraining orders, or both against employers with corporate practices implemented across multiple places of employment. The rule would allow the appeals board to issue an order of abatement for employer-wide written policies or practices, and establish a rebuttable presumption that a non-compliant policy or practice exists at all of the employer’s workplaces.
Finally, SB 606 would establish a rebuttable presumption that an employer’s actions are retaliatory if it takes adverse action against an employee within 90 days of the employee:
- Disclosing a positive test or diagnosis resulting from a workplace exposure;
- Requesting testing as a result of a workplace exposure;
- Requesting personal protective equipment; or
- Reporting a possible violation of a Cal/OSHA standard.