On Friday June 11, 2021, the California Department of Occupational Safety and Health (Cal/OSHA) published new proposed text for re-adoption of the COVID-19 Emergency Temporary Standard (ETS). After previously voting against adopting Cal/OSHA’s initial revised ETS during a highly contentious public meeting earlier this month, during which critics vehemently objected to the rule’s continuation of
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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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.Continue Reading Cal Safety Standards Board defers voting on second COVID-19 ETS until June
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”).