Cal/OSHA Recommends Emergency COVID-19 Regulation With PPE and Training Provisions

On May 20, 2020, worker advocates submitted a petition for an emergency COVID-19 safety standard demanding additional COVID-19 regulations for those employees not covered by the Aerosol Transmissible Diseases (ATD) standard . The ATD standard was codified in 2009 “to protect employees who are at increased risk of contracting certain airborne infections due to their work activities.” The petition included specific requests to adopt standards related to social distancing, ventilation systems, personal hygiene, personal protective equipment (PPE), employee training, and recordkeeping.

On August 10, 2020, staff members of the California Division of Occupational Safety and Health more commonly known as Cal/OSHA, recommended that the Occupational Safety and Health Standards Board do the following: 1) promulgate an emergency COVID-19 regulation and 2) convene an advisory committee to determine whether a permanent regulation should be drafted to protect workers from novel pathogens. In support of its recommendation, Cal/OSHA cited a lack of regulations addressing infectious diseases for workers outside of healthcare settings, including alleged gaps in regulations governing PPE for construction workers and mining employees.

In contrast, the legal staff for the Standards Board suggested that both the petition for the emergency COVID-19 regulation and the recommendations above be denied, citing the need to enforce existing regulations. They explained that new regulations would place additional regulatory burdens on California businesses that are already in compliance with the state’s COVID-19 requirements and guidelines. They also rationalized that the limited resources for enforcement should be focused on employers and sectors of the economy with deficient COVID-19 protections.

Public comments are expected at the next Cal/OSHA Standards Board meeting on August 20, 2020, and a decision on whether to adopt new COVID-19 regulations will occur at a future meeting.

Ogletree Deakins will continue to monitor and report on this important development of possible new COVID-19 regulations 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.