By Conn Maciel Carey’s COVID-19 Task Force
Earlier today, we shared an update about Cal/OSHA’s fast-moving rulemaking for an emergency COVID-19 prevention rule, along with a detailed summary of how we got here, as well as an outline of what the California rule will require.
We wanted to give you an update as soon as we heard, and we just heard… OAL has officially approved Cal/OSHA’s emergency COVID-19 prevention regulation. OAL’s website was just updated with this entry:
And here is the Cal/OSHA website reflecting the current status of the rule and the final approved regulation language: “Text Approved by OAL.”
As Cal/OSHA’s website notes, the rule was filed with the Secretary of State today, and it is immediately effective – all provisions. However, during the Board’s final public hearing about the rule, the Division suggested there would be some reasonable delay in enforcement, but they have not issued anything formal about that. To the extent the rule merely formalizes some requirement Cal/OSHA already believed it had authority to enforce under the IIPP rule, I would not expect any lenience. But for provisions that do create new obligation (e.g.. the mandatory testing after outbreaks), there may be some forbearance for a little while. Be sure to document the efforts you are taking to come into compliance, especially where coming into full compliance will take a little time.
Here is what will happen next:
To this point in the rulemaking, Conn Maciel Carey has worked with a broad coalition of California and national employers to evaluate the emergency rule in its proposed rule form, and developed comments that raised a number of serious concerns, not only about the substance of the rule, but also about the extremely rushed nature of the rulemaking process, as well as these additional comments submitted to California’s Office of Administrative Law, the final gatekeeper for new regulations. We will continue to gather feedback from employers about issues with the emergency rule as employers begin to implement it now, to present them to the Division through the Advisory Committee process.
In the background, Pfizer and Moderna seem to be on the verge of submitting applications to the FDA for emergency use authorization of effective COVID-19 vaccines. So hopefully all of this will be moot in the near future.
In the meantime, contact any of the attorneys in Conn Maciel Carey’s national OSHA Practice if you need help quickly moving into compliance with Cal/OSHA’s new emergency rule.