Just one week after the California Division of Occupational Safety and Health (“Cal/OSHA”) made its proposed COVID-19 Emergency Regulation (“COVID-19 Rule”) available, the Occupational Safety and Health Standards Board (“OSHSB”) responsible for approving such regulations unanimously passed it without revisions. Cal/OSHA is the fourth state OSHA plan to promulgate a rule to address COVID-19, following Virginia, Oregon, and Michigan. The Washington Department of Labor & Industries has made violations of emergency proclamations subject to workplace safety citations.
In response to OSHSB’s September granting of a labor advocacy group’s petition seeking COVID-19 regulation of employers, on November 11, 2020 Cal/OSHA issued a 21-page draft COVID-19 Rule along with a notice of emergency. Although employers and workers in California were not provided the ordinary months of time usually associated with rulemakings to review and digest the draft COVID-19 Rule, participation in the OSHSB November 19, 2020 public meeting was significant. With over 500 virtual participants, not including those on the phone or live streaming, and 150 verbal commenters, the public meeting lasted over ten (10) hours. The Board Chair estimated that the meeting had four times the usual number of attendees, and technical challenges occurred throughout the discussion. Commentary was wide ranging with employee and industry interests equally represented. Individual workers and labor groups generally urged OSHSB to adopt the ETS immediately and to consider the addition of future anti-retaliation provisions, while employer and industry representatives expressed frustration with the lack of stakeholder input or engagement, questioned whether Cal/OSHA has the authority to regulate wage and leave issues, pointed to the effectiveness of existing orders, and identified implementation challenges and inconsistencies with other California laws regulating COVID-19 response that have yet to become effective (i.e., AB 685).