California Employers COVID-19 Prevention Coalition Submits Second Round of Comments on Cal/OSHA’s Non-Emergency COVID Rule

By Megan Shaked and Andrew Sommer

The rulemaking process continues for Cal/OSHA’s Proposed Non-Emergency COVID-19 rule, with the second comment period for the modifications closing.

Conn Maciel Carey again submitted comments on behalf of the California Employers COVID-19 Prevention Coalition.  The Coalition, comprised employers and trade groups,  has been active in the rulemaking for the Cal/OSHA COVID-19 Prevention Emergency Temporary Standard (ETS) and the Proposed Non-Emergency/Permanent COVID-19 Prevention Standard (Proposed Non-emergency Rule).

A copy of the Coalition’s October 31 comments are available here.  To summarize, our comments primarily addressed three concerns raised by the rule modifications:

Definition of Close Contact

On October 13, 2022, the California Department of Public Health updated its definition of “close contact” to Read More

Governor Newsom to End COVID-19 State of Emergency, While Standards Board Marches On

In major news yesterday, Governor Newsom announced that California’s COVID-19 State of Emergency will end on February 28, 2023.  See the following excerpts from the governor’s press release:

  • Capture“With hospitalizations and deaths dramatically reduced due to the state’s vaccination and public health efforts, California has the tools needed to continue fighting COVID-19 when the State of Emergency terminates at the end of February, including vaccines and boosters, testing, treatments and other mitigation measures like masking and indoor ventilation. As the State of Emergency is phased out, the SMARTER Plan continues to guide California’s strategy to best protect people from COVID-19.”
  • “Throughout the pandemic, we’ve been guided by the science and data – moving quickly and strategically to save lives. The State of Emergency was an effective and necessary tool that we utilized to protect our state, and we wouldn’t have gotten to this point without it,” said Governor Newsom. “With the operational preparedness that we’ve built up and the measures that we’ll continue to employ moving forward, California is ready to phase out this tool.”
  • “To maintain California’s COVID-19 laboratory testing and therapeutics treatment capacity, the Newsom Administration will be seeking two statutory changes immediately upon the Legislature’s return: 1) The continued ability of nurses to dispense COVID-19 therapeutics; and 2) The continued ability of laboratory workers to solely process COVID-19 tests.”

In contrast to Governor Newsom’s announcement, however, the Cal/OSHA Standards Board continues to advance a  proposed non-emergency COVID-19 rule, with a two-year fixed term extending well beyond the end of the State of Emergency. Just last Friday, the Standards Board issued a revised draft of the non-emergency rule providing a 15-day notice period for comments. The revised non-emergency rule provides the following substantive changes: Read More

California Public Health Agency Redefines “Close Contact” (Yet Again)

CaptureThe California Department of Public Health (CDPH) has just issued a public health order redefining the “close contact” definition.  In short, the agency has reverted to the CDC’s 6 feet rule for “indoor spaces greater than 400,000 cubic feet per floor” such as warehouses, retail stores, grocery stores, manufacturing plants and hangars with large open floor plans (and high ceilings).  Indoor spaces with 400,000 or fewer cubic feet per floor remain subject to the CDPH’s vague requirement that individuals “shar[e] the same indoor airspace.”

What’s in the CDPH Order?

The public health order provides that “for purposes of [CDPH’s] recommendations regarding isolation and quarantine periods of persons infected with or exposed to COVID-19,” close contact means the following: Read More

Cal/OSHA Moves Closer to Issuing Its COVID-19 Non-Emergency Standard

By Andrew Sommer and Megan Shaked

In July 2022, the California Division of Occupational Safety and Health (Cal/OSHA) revealed a proposed Permanent COVID-19 regulation. The draft permanent rule is intended to replace the current version of the COVID-19 Emergency Temporary Standard (ETS) that is set to expire at the end of 2022.  Here is a link to the agency’s draft regulatory text for the permanent rule.

On July 29, 2022, the Standards Board issued a rulemaking notice that set both the date for a meeting of the Standards Board when the proposed COVID-19 permanent rule would be debated and discussed, as well as an official due date for written comments from interested stakeholder.  Both of those were yesterday, September 15, 2022.  A vote on a proposed final rule is expected in late November or December, with the rule replacing the ETS and going into effect on January 1, 2023 and continuing through December 2024.

Background about the Proposed Permanent Rule

The proposed non-emergency rule (commonly referred to as the permanent rule) would apply until 2 years after effective date, with recordkeeping requirements applying until 3 years after effective date.  The most significant expansion in the proposal is Read More

Comment Period Set for Cal/OSHA’s Permanent COVID-19 Rule

Last month, the California Division of Occupational Safety and Health (Cal/OSHA) revealed a proposed Permanent COVID-19 regulation. The draft permanent rule is intended to replace the current version of the COVID-19 Emergency Temporary Standard (ETS) that is set to expire at the end of 2022.  Here is a link to the agency’s draft regulatory text for the permanent rule.

The proposed permanent rule is expected to remain in effect for two years, except for the record-making and recordkeeping provisions that would remain effective for three years.

On July 29, 2022, the Standards Board issued the attached rulemaking notice that set both the date for a meeting of the Standards Board when the proposed COVID-19 permanent rule would be debated and discussed, as well as an official due date for written comments from interested stakeholder.  Both of those are set for September 15, 2022.

The rulemaking process for the proposed permanent rule is different than with the prior iterations of the emergency COVID-19 rulemaking.  A nonemergency rule requires Read More

Cal/OSHA Updates FAQs Following New CDPH Definition of Close Contacts

By Megan S. Shaked

With the definition of “close contacts” now focused on “shared indoor airspace” rather than the 6 feet/15 minute threshold, Cal/OSHA has updated its FAQs to assist in interpreting the various ETS requirements implicated by the new definition.

Background

When the current version of the ETS was adopted, it specified that if close contact is defined “by regulation or order of the CDPH,” the CDPH definition would apply rather than the definition provided in the ETS itself.  When CDPH issued an order on June 8 updating its definition of “close contact,” that new definition applied to the ETS.  (Cal/OSHA updated its FAQs on June 21 to make clear that the new definition applies to the ETS.)

On June 9, CDPH followed up with updated FAQs to address this new definition.

Cal/OSHA’s FAQs re New Definition of Close Contact

On Monday, Cal/OSHA added its own update to its FAQs, adding a “Definitions” section to address the updated definition of close contact: Read More

Conn Maciel Carey Adds Two Exceptional OSHA and Employment Law Associates in California and DC

Conn Maciel Carey LLP is pleased to announce the addition of two talented new attorneys — Samuel S. Rose (Los Angeles), and Darius Rohani-Shukla (Washington, DC).

Associate Sam Rose supports both the firm’s OSHA • Workplace Safety Practice and the Labor and Employment Practice. He represents employers in a broad range of employment issues and Cal/OSHA compliance and enforcement matters, and he revises employee handbooks and workplace policies and procedures.

“I’m excited to grow as attorney and develop true expertise in employment and OSHA law,” Mr. Rose says. “The partners are all so knowledgeable and willing to mentor and train associates.”

Sam’s legal career began at the Kings County District Attorney’s Office (Brooklyn, NY), where he prosecuted a wide range of criminal cases. Read More

Cal/OSHA’s Proposed “Permanent” COVID-19 Rule Has Just Issued

Cal/OSHA’s rulemaking process does not allow for any more “re-adoptions” of the COVID-19 emergency rule, so if COVID-19 regulatory requirements are to remain, the Cal/OSHA Standards Board will need to adopt a permanent COVID-19 rule. While Captureclarity had been lacking over the content and timing of any such rule, at a meeting of the Standards Board last week, the Division of Occupational Safety and Health (DOSH) revealed a proposed permanent COVID-19 rule. This draft permanent rule is intended to replace the COVID-19 emergency rule, which presently expires at the end of 2022.  Here is a link to the draft regulatory text.

The proposed permanent rule is expected to remain in effect for two years, except for the recordkeeping provisions that would be effective for three years.  While DOSH previously indicated that the “permanent” rule would be consistent with the emergency rule, there are a few significant changes we’ve highlighted. Read More

CAL/OSHA RELEASES UPDATED DRAFT OF WORKPLACE VIOLENCE PREVENTION IN GENERAL INDUSTRIES STANDARD

By Andrew J. Sommer and Samuel S. Rose

In 2014, the California Occupational Safety and Health Standards Board ordered the creation of an Advisory Committee to consider a workplace violence prevention standard for “all California workplaces.”  The Division of Occupational Safety and Health (DOSH) – the enforcement agency – was tasked with drafting a proposed rule, which it did in December 2017 and then revised in October 2018.  This rulemaking process has since remained dormant largely due to the COVID-19 pandemic reshuffling priorities.

Then, on May 17, 2022, DOSH released a revised draft of its proposed Workplace Violence Prevention in All Industries standard (Proposed Rule). This may be a sign the Proposed Rule is coming to a vote by the Standards Board. We have summarized the key components of the Proposed Rule below.

WHO DOES THIS STANDARD APPLY TO?

The Proposed Rule would apply to “all employers,” with limited exception. It does not apply to Read More

Chambers USA Recognizes Conn Maciel Carey as 1 of Only 3 “Band 1” Ranked Law Firms for OSHA Law

Conn Maciel Carey LLP (CMC) is honored to announce that the firm has been recognized as one of only three national law firms ranked in Band 1 Nationwide for Occupational Safety and Health (OSHA) Law. CMC is the only “boutique” firm among all of the law firms recognized.

The recognition comes from Chambers and Partners, an independent research company that delivers detailed rankings and insight into the world’s leading lawyers. This is the first year that Chambers has ranked the OSHA Law practice area.

Chambers’ researchers identified CMC as a “leading national boutique handling the full spectrum of labor and employment litigation with particular emphasis on workplace safety issues. The group…maintains a strong track record in complex OSHA inspections and enforcement matters.”

Among the client comments collected by Chambers about the firm, one stated that CMC’s OSHA Team “offers impressive expertise in federal- and state-level workplace safety laws, and has been especially active in recent months guiding clients through COVID-19 compliance…The firm is the real deal; it is a top OSHA firm.”

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