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).
At the conclusion of the meeting, with limited discussion and no response to the comments provided, OSHSB unanimously voted to pass the COVID-19 Rule as written. As a slight conciliation although not an official enforcement policy, Cal/OSHA chief Doug Parker acknowledged that he did not expect employers to be in immediate compliance, and that the agency was planning for some leeway in terms of implementation. OSHSB Board Chair David Thomas recommended that Cal/OSHA engage with stakeholders through an advisory committee or other process soon.
As an emergency action to address an imminent hazard, the COVID-19 Rule bypassed the usual rulemaking process, including the public comment period. California law only requires five (5) days notice from the adopting agency before it is submitted to the Office of Administrative Law (“OAL”). Cal. Gov’t Code § 11346.1(a)(2). With OSHSB’s approval yesterday, the COVID-19 Rule will be sent to the OAL, which then has ten (10) calendar days to review and make a decision on the regulation. Cal. Gov’t Code § 11349.6(b). Normally, the OAL also allows five (5) calendar days for the public to submit comments, but this can also be bypassed if “the emergency situation clearly poses such an immediate serious harm that delaying action to allow public comment would be inconsistent with the public interest,” which Cal/OSHA has argued is the case here. Emergency regulations become effective upon filing unless a later date is specified by the submitting agency, which Cal/OSHA has not opted to provide for the COVID-19 Rule. Cal. Gov’t Code § 11346.1(d). It is expected that the COVID-19 Rule will become effective by November 30, 2020 and will remain in effect for 180 days with possibilities for extensions.
Substantively, the rule imposes many requirements which employers may find difficult to implement on such a short timeframe depending on their current response plans. At a high level, the COVID-19 Rule requirements include:
- Employers must implement a written COVID-19 prevention program, which must include the following elements:
- System for communicating information to employees;
- Identification/evaluation of hazards, including a screening and response process;
- Investigating and responding to cases, which requires employers to contact trace and provide testing free of charge;
- Correction of hazards;
- Training and instruction;
- Physical distancing;
- Face coverings, which employers must provide;
- Other engineering controls, administrative controls, and personal protective equipment (“PPE”), which addresses partitions, ventilation, handwashing facilities, and cleaning and disinfecting procedures;
- Reporting, recordkeeping, and access, including reporting to local health departments (“LHD”);
- Exclusion of COVID-19 cases from the workplace; and
- Return to work criteria.
- Employers must implement certain protocols if there is an outbreak in the workplace of three (3) or more COVID-19 cases within a 14-day period until there are no new cases for a 14-day period. These include:
- Mandatory testing of all employees in the exposed workplace, immediately and one (1) week later;
- Exclusion of positive cases and exposed employees;
- Investigation of possible workplace-related factors that contributed to the outbreak;
- Review of COVID-19 policies, procedures, and controls and implement changes as needed, including documentation of those actions; and
- Notification of the LHD immediately, but not later than 48 hours.
- Employers must implement additional protocols if there is an outbreak of 20 or more COVID-19 cases within a 30-day period until there are no new cases for a 14-day period, including twice-weekly testing, evaluation of whether respiratory protection should be required, and evaluation of whether operations should cease.
- Employers providing housing or transportation to employees must implement physical distancing, face covering, cleaning, ventilation, and sanitizer requirements.