Federal OSHA’s COVID-19 ETS: Will It Change the Next ETS for California?

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The California Division of Occupational Safety and Health (Cal/OSHA) was planning to update and adopt new language for the California COVID-19 ETS that would take effect in January 2022. However, California’s proposed language for the revised ETS does not match the language of OSHA’s ETS, leaving many wondering if California will now revise the proposed language to bring the California ETS into alignment with the federal standard and proceed with the “Horcher” adoption process to quickly adopt the federal OSHA requirements.

In California, the ETS took effect on November 30, 2020, and the workplace standards were updated on June 17, 2021, to take in account that vaccines were available. The updated ETS also included requirements for vaccinated and unvaccinated workers. While the Occupational Safety and Health Standards Board voted to adopt proposed revisions to the ETS in June, it did so with reservations about some provisions. The Standards Board also voted to form a subcommittee to advise on further revisions to the ETS in light of these reservations.

While the California standard requires that vaccination status must be documented, it does not specify a particular method. Employees are to provide proof of vaccination and can self-attest, only requiring that the employer maintain a record of who self-attests.

On September 17, 2021, Cal/OSHA released for discussion initial draft text for proposed permanent COVID-19 regulations, which if adopted would be subject to renewal or expiration after two years and would replace the current ETS. The California ETS was scheduled for re-adoption, with revised language, to take effect on January 14, 2022.

The California ETS does not mandate vaccinations or set forth a requirement to test in lieu of vaccination. Cal/OSHA has indicated that it will evaluate separately how to respond to a federal OSHA requirement for vaccinations in the workplace—which may occur outside the context of a further revision to the California ETS. We will likely have additional information from the California OSHA Standards Board on their next actions for adoption of updated regulations shortly.

Ogletree Deakins will continue to 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 and podcast programs.