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.”

Read More

Cal/OSHA Updates FAQs Following Third Readoption of COVID-19 Emergency Temporary Standard

By Megan S. Shaked

Now that Cal/OSHA’s Third Readoption of the COVID-19 Emergency Temporary Standard is in effect, the agency has updated its Frequently Asked Questions to reflect those revisions effective May 6, 2022.  (See our previous blog articles regarding the revisions in the Third Readoption and the Board vote to approve the readoption.)

Many of the updated FAQs simply reflect the revised ETS language itself, for example, removing references to vaccination status as the ETS requirements are no longer dependent on such status.  The FAQs have also been updated to reflect the current terminology used in the Third Readoption, for example, using “infections period” instead of “high risk exposure period.”

However, some of the updated Frequently Asked Questions provide added clarity regarding the current requirements: Read More

Cal/OSHA Standards Board Approves Third Re-Adoption of COVID-19 Emergency Rule

As expected, on April 21st the Cal/OSHA Standards Board voted to adopt the proposed third re-adoption of the COVID-19 Emergency Temporary Standard.  The Board voted 6-1, with management representative Kathleen Crawford casting the sole no vote.  The new rule iteration is set to take effect on about May 2, 2022, once approved by the Office of Administrative Law, and will remain in effect until December 31, 2022.  As mentioned in our prior blog post, the third re-adoption retains the core elements of the emergency rule but with various substantive changes.

DOSH Deputy Chief Eric Berg, in his briefing to the Board ahead of the vote, indicated that there will be FAQs issued to address the re-adoption.  He also noted, in light of concerns over employees refusing testing, that employers can require testing.  He cited the current Cal/OSHA FAQs referencing the Department of Fair Employment and Housing’s FAQ on this topic. Read More

Cal/OSHA Issues Revised COVID-19 Emergency Rule – Third Re-Adoption

By Andrew J. Sommer and Fred Walter

The California Occupational Safety and Health Standards Board has just released a proposed draft for the third re-adoption COVID-19 Emergency Temporary Standard (ETS).  The Board will vote on the proposed rule at its next meeting on April 21, 2022, and the text is expected to be approved.  This new rule will remain in effect until December 31, 2022, after which time the Board may consider a permanent infectious disease standard for general industry – presenting another battle to be waged.  Here is a redlined draft showing  changes from the current emergency rule.

Some of the changes in this draft ETS are minor, while others are quite substantive.  Here are some highlights: Read More

Cal/OSHA Enforcement and Regulatory Update [Webinar Recording]

On Tuesday, March 15, 2022, Andrew Sommer, Fred Walter, and Megan Shaked presented a webinar regarding a Cal/OSHA Enforcement and Regulatory Update.

This has been a challenging year for California employers navigating the COVID-19 pandemic with a set of ever-changing regulatory requirements, as well as a flurry of other new workplace safety laws the legislature passed towards the end of 2021.  This update covered the latest legislative and rulemaking developments concerning COVID-19, including the second re-adopted COVID-19 Emergency Temporary Standard.  We also covered other laws creating new workplace safety requirements and expanding the Division of Occupational Safety and Health’s (DOSH) enforcement authority.

During this webinar, participants learned about: Read More

CDC Relaxes Face Covering and Distancing Guidelines

By Conn Maciel Carey LLP’s COVID-19 Task Force

As governors and big city mayors across the country have been allowing indoor masking mandates to expire over the last few weeks, last Friday, February 25th, the CDC unveiled a brand new approach to assessing COVID-19 risks and setting mask and distancing recommendations.   The CDC’s old tool, which measured the number of COVID-19 cases to determine the relevant level of virus transmission in each community had lost its usefulness as it rendered nearly the entire country as high-risk (95% of all counties), even as the number of people getting seriously ill had dropped precipitously this year.

CDC’s new guidelines measure the impact the pandemic by looking at three factors week over week:

  1. New cases per capita (as with the prior guidelines); but also
  2. New COVID-19 related hospital admissions; and
  3. The percentage of area hospital beds occupied by COVID-19 patients.

Each county will have a weekly “COVID Community Level Rating” that is either Low (green), Medium (yellow) or High (orange).  Each level/color has recommended mitigation strategies, set in the table below:

Here is a link to CDC’s tool to identify the level of COVID-19 transmission in your county.

The big news is that CDC recommends Read More

Paid COVID-19 Supplemental Sick Leave Returns to California, Again

By Megan S. Shaked

California Governor Newsom has signed legislation extending a new allotment of up to 80 hours of COVID-19 supplemental paid sick leave to California workers through new Labor Code Sections 248.6 and 248.7.  The leave is retroactive to January 1, 2022, and continues through September 30, 2022.  Small businesses that employ 25 or fewer workers are not covered by the legislation.

Use of Sick Leave for Reasons Related to COVID-19

The legislation provides for up to 40 hours of COVID-19 supplemental paid sick leave for employees who are unable to work or telework for certain reasons related to COVID-19, including:

  • Employee is subject to quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer with jurisdiction over the workplace;
  • Employee has been advised by a health care provider to isolate or quarantine due to COVID-19;
  • Employee is attending a COVID-19 vaccine or vaccine booster appointment for themselves or a family member;
  • Employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster;
    • (for each vaccination or booster, an employer may limit the total COVID-19 supplemental sick leave to 3 days or 24 hours unless the employee provides verification from a health care provider that the employee or family member is continuing to experience symptoms.  This includes the time to get the vaccine or booster.)
  • Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • Employee is caring for a family member who is subject to an order or guidance to quarantine or isolate or has been advised to isolate or quarantine by their health care provider;
  • Employee is caring for a child whose school or place of care is closed or otherwise unavailable for reason related to COVID-19 on the premises

The full 40 hours is available to Read More

California Appellate Court Rejects Challenge to COVID-19 Emergency Rule

In Western Growers Association, et al, v. Occupational Safety and Health Standards Board, et al, the California appellate court recently affirmed the lower court’s decision denying a challenge to Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS).  This decision has far-reaching implications, affording considerable deference to the California Occupational Safety and Health Standards Board’s (Board) rulemaking process and authority to bypass regular rulemaking with emergency temporary standards supported by its own “declaration of emergency.”  The Board – which is tasked with promulgating workplace safety rules – has  had an oversized role during the COVID-19 pandemic.

As background, the Board’s COVID-19 ETS was approved, effective November 30, 2020, over the recommendation of Board staff finding that “Cal/OSHA’s limited resources should continue to be focused on enforcement and consultation outreach specifically targeted at employers and sectors of the economy with deficient COVID-19 protections,” as this is likely to be more effective than new rulemaking.  Since then Cal/OSHA’s ETS has undergone numerous revisions, being “re-adopted” effective June 17, 2021 and then again on January 14, 2022.  The regulation has been a moving target for employers, with the Board each time adopting modified text followed by updated FAQs.   Read More

%d bloggers like this: