Cal/OSHA Standards Board to Draft and Adopt COVID-19 Safety Standard

On September 17, 2020, the Occupational Safety and Health Standards Board of the California Division of Occupational Safety and Health (Cal/OSHA) voted unanimously to pursue the drafting and adoption of a California COVID-19 safety regulation. The emergency regulation would cover all workers in California regardless of industry segment. Dozens of California workers, labor representatives, and experts demanded more workplace safety regulations as a way to improve enforcement, but they were countered by a large number of business representatives who pointed out that a new regulation was unnecessary since California is currently citing employers under several existing regulations, including Title 8 of the California Code of Regulations (CCR), Section 3203 (Injury Illness Prevention Program (IIPP)).

Overview

On May 20, 2020, Worksafe Inc. and the Labor and Employment Committee of the National Lawyers Guild submitted Petition File No. 583 requesting that the Standards Board amend Title 8 CCR to create new regulations governing COVID-19 safety standards. The petition requested a framework parallel to the California IIPP regulations; additional “procedures to identify and evaluate COVID-19 workplace hazards”; procedures related to employees who may have been exposed to COVID-19, who have been diagnosed with COVID-19, or who have symptoms of COVID-19; preventative measures, including personal protective equipment (PPE); special reporting requirements; and provisions regarding employee training. The Standards Board unanimously approved a petition decision to require that Cal/OSHA work with Board staff to submit a proposal for an emergency regulation at the Board’s November 19, 2020, meeting.

Analysis

Like many other states and state agencies, California’s Occupational Safety and Health Standards Board is under pressure to act and create regulations despite the existence of enforcement mechanisms and methods that are already in use to hold employers accountable for COVID-19–related workplace safety requirements. Petition File No. 583 asserts that specific and detailed regulations will create greater compliance and prevent confusion among workers and employers.

However, the voluminous guidelines and massive quantities of information on the Cal/OSHA website create an inference that there is plenty of specific and detailed COVID-19 information available to employers and workers. Will more regulations create more compliance? The Standards Board, Cal/OSHA, and many advocates who took the opportunity to appear via videoconference at the meeting believed so. The California Chamber of Commerce and other business representatives pointed out that existing regulations are currently being enforced and suggested that a greater focus on enforcement would lead to better compliance.

Key Takeaways

• The Standards Board requested Cal/OSHA submit a draft proposed emergency regulation “for consideration no later than the November 19th, 2020, Board meeting.”
• A detailed emergency regulation providing new COVID-19 workplace safety standards will likely be issued before the end of 2020.
• The temporary standard will be in place until sometime after the pandemic subsides. The Standards Board has requested that Cal/OSHA convene a representative advisory committee to consider a permanent novel pathogen regulation for workers outside of the healthcare industry.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.