Cal/OSHA Hearing Reflects Disagreements Over Non-Emergency COVID-19 Standard

By David Dixon, Alka Ramchandani-Raj, Melissa Peters, Eric Compere, and Krystal Weaver © Littler September 26, 2022
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four employees in face masks

​On Sept. 15, the Cal/OSHA Standards Board held a public hearing on a proposed non-emergency COVID-19 two-year standard. The hearing and subsequent board discussion demonstrated that there remains a great deal of disagreement about whether a non-emergency standard is needed at all, and that there are serious concerns from both management and labor representatives about the provisions currently contained in the proposed non-emergency regulation.

Throughout 2022, the state Division of Occupational Safety and Health has repeatedly stated its major objective to have a non-emergency COVID-19 standard approved in time for it to become effective upon the expiration of the current COVID-19 emergency temporary standard, no later than Jan. 1, 2023.  As currently framed, the proposed non-emergency regulation would remain in effect for two years until Dec. 31, 2024.

Employer Concerns

Multiple representatives of the employer community expressed opposition to any non-emergency standard after the expiration of the current emergency temporary standard, commenting that the measure is untethered to any current underlying data or information to justify the significant regulatory burdens it would impose. In addition, employer representatives commented that the two-year duration of the proposed regulation appears entirely arbitrary, with no connection to sunsetting that might be based on factors such as declining COVID-19 case data, effectiveness of emerging preventative and treatment measures, such as additional boosters or medication, or other mitigating measures.

Meanwhile, a bill recently signed by Gov. Gavin Newsom, AB 2693, contains provisions that would end various COVID-19 related requirements on Jan. 1, 2024.

Employer representatives further argued that specific provisions in the proposed regulation would create unmanageable and extremely burdensome obligations that require the division to consider revisions to the proposed text.

For example, the proposed regulation presently defines a close contact as "sharing the same indoor space" with a COVID-positive individual for a cumulative total of 15 minutes or more over a 24-hour period during the individual's infectious period. It also would require that employers "keep a record of persons who had a close contact, including their names, contact information, and the date upon which they were provided notice of the close contact."

Multiple commentors noted that both the U.S. Centers for Disease Control and Prevention and the California Department of Public Health have recognized the general ineffectiveness of contact tracing in limiting the spread of COVID-19 and the enormous expenditure of time and resources that is involved with imposing a duty to perform contact tracing on employers. 

In addition, AB 2693 will amend California's statute regarding COVID-19 notices (Labor Code § 6409.6) so as to permit employers to meet notice obligations to employees by prominently posting notices in the workplace, rather than providing individualized notices. The text of the bill thus directly contradicts the notice requirements in the proposed regulation. Employer representatives asserted that it made no sense and may violate the state's Administrative Procedure Act for Cal/OSHA to impose a more strenuous obligation on employers.

Employer representatives also contended that the definition for an outbreak should be modified to be proportional to the size of the workforce, rather than triggered any time that three COVID-19 cases occur within an exposed group in a 14-day period. As pointed out during the meeting, this stringent definition as proposed could mean that larger employers are nearly always in an outbreak status under the regulation, resulting in numerous additional obligations.

Conversely, representatives of labor expressed strong support for continuation of COVID-19 regulations by Cal/OSHA after the expiration of the current emergency temporary standard, but asserted that the proposed regulation in its current form would be unworkable and fail to provide workers with adequate protections.  Labor representatives contended that the proposed regulation is fatally flawed because it does not contain provisions requiring employers to provide exclusion pay to employees when they cannot work due to having COVID-19 or in the event of other work-related COVID-19 circumstances requiring exclusion under the regulation.

Although the public hearing demonstrated that stakeholders, including members of the Cal/OSHA Standards Board, have serious concerns about the proposed regulation, the options available to the division for addressing those concerns is limited because of the additional procedural requirements applicable to non-emergency regulations under the state's Administrative Procedure Act.

Next Steps

California employers should continue to comply with their obligations under the current emergency temporary standard through Dec. 31. They also should be aware that it remains highly likely that the board will conduct a vote by or at its Dec. 15 meeting to approve some final version of a proposed non-emergency COVID-19 regulation. 

The fact that the currently proposed text met with significant opposition from all sides at the Sept. 15 meeting suggests that a final regulatory outcome may not be fully satisfactory. Nonetheless, despite significant employer concerns with the proposed non-emergency standard in its current form, it would be relatively less complex than the emergency temporary standard for employers from a compliance perspective, and it remains possible that adjustments may still occur to address problematic definitions and other concerns.

David Dixon is an attorney with Littler in Idaho. Alka Ramchandani-Raj and Melissa Peters are attorneys with Littler in Walnut Creek, Calif. Eric Compere is an attorney with Littler in Los Angeles. Krystal Weaver is an attorney with Littler in San Diego. © 2022. All rights reserved. Reprinted with permission. 

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