California OSH Board Votes to Withdraw Latest Changes to the COVID-19 Emergency Temporary Standard and Vote on a New Revision on June 17, 2021

On June 9, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA) voted to withdraw the previously submitted Emergency Temporary Standards (ETS) changes and instead consider further revisions at its June 17, 2021, meeting.

The online meeting generally was improved from the last meeting because the Standards Board restricted use of the chat function and limited public comments to a total of two hours with each speaker limited to two minutes.

California Department of Public Health Director’s Testimony

Prior to the vote, Dr. Tomás Aragón, who is the director of the California Department of Public Health (CDPH), gave his testimony during which he provided substantial reporting on present public health COVID-19 recommendations, including an overview of current vaccination rates, present COVID-19 data across the state of California, and current guidelines from the U.S. Centers for Disease Control and Prevention (CDC). Dr. Aragón stressed that there are locations where face coverings are appropriate, such as public transportation, schools, and shelters. He also discussed distinguishing between vaccinated and unvaccinated workers. He briefly answered questions from Standards Board members.

Cal/OSHA Deputy Chief’s Statements

Eric Berg, Cal/OSHA’s deputy chief, initially spoke for less than two minutes. He stated that his department was currently evaluating the CDPH letter and drafting a proposal for consideration at the June 17, 2021, Standards Board meeting. He did not offer details or specifics regarding changes to the ETS revision. He later answered Standards Board questions prior to the vote.

Public Comments at the Hearing

Public comments began with Helen Cleary from the Phylmar Regulatory Roundtable, Robert Moutrie on behalf of the California Chamber of Commerce, followed by many trade groups and employer groups. As they did in prior meetings, most employer representatives criticized the Board’s processes and reversals, any N95 requirements, and the difficulties with vaccination recordkeeping. Labor groups requested a continuation of demanding COVID-19 regulations and the availability of N95 masks. In addition, they opposed any rollback of face coverings regulations. Public comments again were filled with anti-vaccination, anti-government, and anti-mask commenters who stressed their distrust of vaccinations, testing, mask-use requirements, and Dr. Fauci.

During the public comment portion of the hearing, we (Kevin D. Bland and Karen F. Tynan), as members and representatives of Ogletree Deakins’ Workplace Safety and Health Practice Group, testified and expressed our concerns with the Standards Board’s processes, the lack of consistency with CDC guidance and CDPH guidelines, and difficulties with difficulties with N95 respirator requirements.

Highlights From the Board Discussion

Occupational Safety & Health Standards Board Chair David Thomas led questions and discussion with board members and Dr. Aragón.

• Board Member Laura Stock questioned Dr. Aragón regarding outbreak data and again repeatedly voiced her support for the use of N95 masks in the workplace.
• Board Member Nola Kennedy asked Dr. Aragón to explain immunity.
• Board Chair Thomas expressed his desire to avoid confusion in any revision to regulations. He repeatedly expressed his view that withdrawing the June 3, 2021, approved regulation would be the best long-term strategy for COVID-19 rulemaking.
• Board Member Dave Harrison queried Dr. Aragón regarding how the CDPH defines face coverings in an effort to understand the presentation. Harrison also asked how self-attestation would work, and Dr. Aragón replied that he “hoped that people will be honest with self-attestation.” Harrison also expressed his support for N95 mask requirements as long as employers had access to the respirators.
• Board Member Chris Laszcz-Davis asked if Dr. Aragón was recommending N95 masks. He dodged the question and deferred to Cal/OSHA.
• Christina Shupe, executive officer, explained procedures and the Administrative Procedure Act and clarified that there could only be two read options of the original November 2020 ETS as an emergency standard.

After the formal public comment period, Board Chair Thomas led the brief board discussion. Then the Board voted unanimously to withdraw the previously approved June 3, 2021, revision, leaving the current ETS as operable. At the June 17, 2021, meeting, the Board will review a new submittal from Cal/OSHA that is supposed to be more consistent with CDPH guidelines and the California reopening.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic, including the Cal/OSHA ETS. When Cal/OSHA makes a new proposal to the Standards Board, we will post updates in the firm’s Coronavirus (COVID-19) Resource Center and our California and Workplace Safety and Health blogs. Important information for employers is also available via the firm’s podcast programs.