June 4, 2021

Cal/OSHA Standards Board First Rejects, Then Readopts Cal/OSHA COVID-19 Emergency Temporary Standards

As reported here, the California Occupational Safety & Health Standards Board (Board) met on June 3, 2021, to hear testimony and to vote on Cal/OSHA’s revised COVID-19 Prevention Emergency Temporary Standards (ETS).

After approximately six hours of testimony, the Board initially rejected the revised ETS, with some members expressing doubts about the quality of the initial ETS and the proposed revision. When the Board returned from recess, it conducted a second motion to vote on the proposal, reversed itself and unanimously voted to approve the Division of Occupational Safety and Health’s proposal. In initially rejecting the revised ETS, the Board reportedly did not understand that a “no” vote meant that the original standard, which contains no exceptions for vaccinated workers, would remain in place.

The Board also empaneled a subcommittee to provide guidance regarding improvements that could be made on the revised ETS in a subsequent readoption, increasing the likelihood that the Board and stakeholders will be dragged through this process at least one more time.

The revised standards are the first update to Cal/OSHA’s temporary COVID-19 prevention requirements since they were adopted in November 2020.

According to a press release by the Department of Industrial Relations: 

“The Board may further refine the regulations in the coming weeks to take into account changes in circumstances, especially as related to the availability of vaccines and low case rates across the state…. Notable revisions include:

  • Face Coverings: Fully vaccinated workers without COVID-19 symptoms do not need to wear face coverings in a room where everyone else is fully vaccinated and not showing symptoms. Fully vaccinated and unvaccinated workers without symptoms do not need to wear face coverings outdoors (except at “mega-events” with more than 10,000 people).
  • Physical Distancing: When the revised standards take effect, employers can eliminate physical distancing and partitions/barriers for employees working indoors … if they provide respirators, such as N95s, to unvaccinated employees for voluntary use. After July 31, physical distancing and barriers are no longer required (except during outbreaks), but employers must provide all unvaccinated employees with N95s for voluntary use.
  • Prevention Program: Employers are still required to maintain a written COVID-19 Prevention Program but there are some key changes to requirements:
  • Exclusion from the Workplace: Fully vaccinated workers who do not have COVID-19 symptoms no longer need to be excluded from the workplace after a close contact.
  • Special Protections for Housing and Transportation: Special COVID-19 prevention measures that apply to employer-provided housing and transportation no longer apply if all occupants are fully vaccinated.”

In the meantime, Western Growers and coalition partners argued that while the revised standards are preferable to the existing, harsh, and unwieldy ETS requirements, they perpetuate the Board’s misuse of statutory emergency rulemaking procedures which are being litigated in Western Growers Association v. California Occupational Safety & Health Standards Board, and should be rescinded. The expedited appeal of the denial of a preliminary injunction in that case is awaiting a hearing date by the California Court of Appeal, which is expected to take place this summer.