Timing Unclear for California COVID-19 Emergency Temporary Standard

By Benjamin M. Ebbink and Abby Harrington Putzulu © Fisher Phillips November 16, 2022
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​After a wild and bumpy ride of dealing with the Cal/OSHA COVID-19 emergency temporary standard (ETS), most California employers were relieved that the ETS was set to expire at the end of this year. However, last-minute debate at the Cal/OSHA Standards Board over a proposed two-year COVID-19 standard makes it likely that the ETS will remain in effect until as late as mid-February, meaning California employers will be bound by the ETS, including its exclusion pay requirements, longer than anticipated.

Transition May Not Be Seamless

Since fall 2020, California employers have had to comply with the ever-changing ETS. The ETS has been readopted several times, bringing constant changes to COVID-19 protocols in the workplace. As an emergency regulation, an ETS can typically only be readopted twice. However, given the unprecedented nature of COVID-19, Gov. Gavin Newsom took the extraordinary step of issuing an executive order that authorized the ETS to be readopted for a third time, effective through the end of 2022.

The Cal/OSHA Standards Board has been working for months on a nonemergency COVID-19 standard that would replace the current ETS after it expires.

Given the monthslong planning process, we hoped we would see an orderly and seamless transition between expiration of the ETS on Dec. 31 and the effective date of the nonemergency standard on Jan. 1, 2023. It now seems that may not be the case.

More Flexible Approach Expected

The proposed nonemergency standard generally provides a more flexible approach for employers in addressing COVID-19 in the workplace as part of their regular Injury and Illness Prevention Program (IIPP). Each proposed draft of the nonemergency standard has removed the requirement for employers to provide exclusion pay for employees who are absent from the workplace due to COVID-19 infection or exposure.

Ongoing debate over whether to keep exclusion pay in the standard has thrown an unexpected kink into the process and the timing. Labor advocates opposed any nonemergency standard that did not include exclusion pay. So far, Cal/OSHA and the Cal/OSHA Standards Board have held the line, and each version of the proposal has removed the exclusion pay requirement.

However, at the last meeting of the Cal/OSHA Standards Board in October, four of the seven board members echoed the concerns of labor and essentially demanded that exclusion pay be added to the standard. It remains to be seen whether Cal/OSHA will respond by revising the language. This continued debate and delay means that the board will not vote to adopt the nonemergency standard until their Dec. 15 meeting.

Timing is Everything

Even after the board approves a nonemergency standard on Dec. 15 (with or without exclusion pay), it still needs to be reviewed by the Office of Administrative Law (OAL) and filed with the Secretary of State before it takes effect. Here is where an arcane administrative process could result in continued operation of the ETS beyond the end of the year.

The nonemergency regulation is considered a certificate of compliance rulemaking. This generally refers to the process in which an emergency regulation becomes a permanent regulation when the board adopts a nonemergency standard while the emergency standard is in effect.

When an agency submits a certificate of compliance to OAL, the emergency regulation stays in effect during OAL's review. If a certificate of compliance is submitted, the maximum time period for OAL review is 30 working days, although OAL may act earlier. Because the board's final approval of the nonemergency standard will be last-minute, these arcane administrative rules will likely come into play.

If the board approves the nonemergency standard on Dec. 15, it is likely that the certificate of compliance will be submitted to OAL shortly thereafter. Then OAL will then have up to 30 working days to approve the regulation and file it with the Secretary of State.

The ETS will remain in effect while OAL is undertaking their review, even if this extends beyond the original Dec. 31 expiration date of the ETS. Therefore, if the OAL takes 30 days to review and approve the nonemergency standard, the ETS could remain in effect until mid-February. Even if OAL acts sooner, it seems inevitable that the ETS will remain in effect beyond Dec. 31 and into January.

What Should Employers Do?

Given that the ETS may remain in effect through the new year, employers must keep their COVID-19 protocols in place until the nonemergency regulation goes into effect. Employers should continue to identify, evaluate and correct COVID-19 hazards in the workplace. This means that contract tracing, reporting outbreaks, individual notice requirements, and exclusion pay may be here to a stay a little bit longer than we anticipated.

There's still a lot up in the air for California employers. In theory, Cal/OSHA still has time to release revised proposed language in time for the board to consider at its Dec. 15 meeting. Employers are waiting with bated breath to see if Cal/OSHA buckles to the pressure from labor groups and adds exclusion pay back into the mix.

California employers will need to watch developments closely to see if the proposed language changes further. Due to the procedural requirements of the law, the ETS will likely remain in effect into 2023. California employers will need to be prepared to continue to comply with the ETS beyond the end of the year and pivot to comply with the nonemergency regulation thereafter.

Benjamin M. Ebbink is an attorney with Fisher Phillips in Sacramento, Calif. Abby Harrington Putzulu is an attorney with Fisher Phillips in San Francisco. © 2022. All rights reserved. Reprinted with permission. 

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