Join Conn Maciel Carey’s 2023 Cal/OSHA Rulemaking Coalition
For the past two years, Conn Maciel Carey has represented a broad coalition comprised of California and national employers and trade associations from a diverse range of industries in advocating to the Cal/OSHA Standards Board about the roller coaster of COVID-19 emergency and non-emergency rulemaking, in the form of preparing numerous rounds of written comments, testifying in public meetings, and participating by invitation as one of only a small number of management-side representatives on a rulemaking Advisory Committee established by Cal/OSHA for the COVID-19 regulatory process. 
We have been intrinsically involved in the four iterations of Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS), and the COVID-19 Non-Emergency Rule that was recently adopted for a two-year term.
Those of you whose organizations participated in our California Employers COVID-19 Prevention Coalition know that together we accomplished a great deal, with material improvement for employers to the COVID-19 regulatory landscape in California. Our coalition’s input is reflected in the regulatory text of the Cal/OSHA COVID-19 ETS and now the COVID-19 Non-Emergency Rule, as well as in several batches of FAQs issued by Cal/OSHA attempting to address some of the concerns and recommendations we identified.
With the completion of the non-emergency rule now, we expect the Cal/OSHA Standards Board to transition in 2023 from the COVID-19 related rulemaking to its regulatory priorities that were forced to the backburner because of the pandemic, including work on: Read More
Cal/OSHA COVID-19 Non-Emergency Rule Is Adopted
By Megan S. Shaked and Andrew J. Sommer
On December 15, the California Occupational Safety and Health Standards Board voted 6-1 to adopt the COVID-19 Prevention Non-Emergency Regulations. The Non-Emergency Rule was proposed to replace the Cal/OSHA COVID-19 Emergency Temporary Standard, which has been in effect in four different versions since November 30, 2020 and is set to expire on December 31, 2022.
The Office of Administrative Law will now review the new regulation, which is expected to be formally approved, effective January 1, 2023.
Discussion from the Standards Board Meeting
During the meeting, stakeholders provided public comments on the proposed Non-Emergency Rule. During the public comment period, Conn Maciel Carey spoke on behalf of the California Employers COVID-19 Prevention Coalition, composed of a broad array of California employers and trade groups substantially impacted by Cal/OSHA’s COVID-19 rulemaking. We urged the Board to vote “no” on the proposal, highlighting the availability of vaccinations, testing and treatment and the inflexibility of the two-year fixed term. We also Read More
California Rings in 2023 with New Employment Laws
By Andrew J. Sommer, Fred Walter, Megan S. Shaked, and Samuel S. Rose
This year, Governor Newsom has signed into law employment bills on disparate subjects such as pay equity, cannabis use, and leaves of absence. These new laws also concern industry-specific mandates for wage and hour compliance and human trafficking avoidance. These new laws take effect on January 1, 2023, unless otherwise noted.
New Pay Equity Law Requiring Disclosure of Employee Pay Scales
Senate Bill (SB) 1162 amends the existing requirement for private employers with 100 or more employees to submit pay data reports to the California Civil Rights Department. The employer pay data reports are now due by the second Wednesday of May 2023, and the second Wednesday of May for each year thereafter. SB 1162 also requires private employers with 100 or more employees hired through labor contractors to submit, by the second Wednesday of May, a separate pay data report to the Civil Rights Department for those employees.
These pay data reports must now include the median and mean hourly rate for each combination of race, ethnicity, and sex within each enumerated job category (for example, executive/senior level officials/managers, professionals, administrative support workers, service workers, etc.). Employers with multiple establishments need not submit a consolidated report, as previously required. Importantly, employers can no longer submit an EEO-1 in lieu of a pay data report.
This law also adds a requirement that Read More
Cal/OSHA Advisory Committee Offers Updates on Enforcement, Rulemaking and More
By Megan Shaked
The Cal/OSHA Advisory Committee holds meetings throughout the year to provide information regarding its programs and activities. At the most recent meeting, held on November 10, 2022, the public heard updates from DOSH, the Standards Board, and the Appeals Board.
Here are some highlights from the meeting. A full video and audio recording of the meeting is available here.
Cal/OSHA Chief Jeff Killip noted his goal to try to shift the Advisory Committee meetings to balance providing meaningful data with discussion for a collaborative approach to workplace safety and health. He also shared:
- Cal/OSHA is hiring to fill vacancies.
- Cal/OSHA’s heat/wildfire smoke campaigns included: 250 high heat targeted inspections this season; 299 consultations; 8 bi-weekly calls with Heat & Agriculture Coordination Program; an update to the Heat Special Emphasis Program to address Indoor Heat Hazards; an expansion of the DIR/DOSH Multimedia Heat Illness Prevention media campaign to include indoor heat; bilingual community engagement liaisons and bilingual trainers meeting with community based organizations, advocacy groups and others.
- California had 245 events around 2022 Safe & Sound Campaign in collaboration with Washington and Oregon (week of August 15-21)
- Cal/OSHA also participated in 2 agricultural worker events, a 4-day health symposium, and a 2-day conference for consultation.
Cal/OSHA Deputy Chief of Health and Research and Standards, Eric Berg, provided an update on the status of rulemaking: Read More
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:
“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)
The 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
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
Authors
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Ashley D. Mitchell
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Andrew J. Sommer
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Beeta B. Lashkari
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Eric J. Conn
jtunon7041
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Megan Shaked
Samuel Rose
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Theresa Green
Conn Maciel Carey’s Other Blogs:
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