Cal/OSHA Advisory Committee Convened as The Division Considers Changes to Its COVID-19 ETS

By Conn Maciel Carey’s COVID-19 Task Force

Over four months after the California Occupational Safety and Health Standards Board (“Board”) unanimously adopted a COVID-19 Emergency Temporary Standard (“ETS”), the Division of Occupational Safety and Health (the “Division”) has been busy considering potential changes to the emergency regulation.  When the ETS was first adopted, the regulated community scrambled to understand and implement the regulation.  The Division issued numerous Frequently Asked Questions in January, February and March, but many questions remained unanswered.

Cal ETS Advisory CommitteeIn February, the Division convened an Advisory Committee to provide input on possible changes to the ETS.  The Advisory Committee consisted of members from business and industry, labor and community groups, public agencies, and the health sciences.  A coalition of California employers organized by Conn Maciel Carey – the California Employer COVID-19 Prevention Coalition (the “Coalition”) – was one of a very small group of industry representatives invited to participate on the Advisory Committee.

Ahead of the Advisory Committee meetings, which were held on February 11, 12 and 16, Cal/OSHA circulated Discussion Drafts reflecting changes to be considered during the meetings.  Over the course of the 3-day Advisory Committee meeting, the Coalition had the opportunity to provide meaningful input on it members’ concerns and recommendations to improve the ETS.

On March 2, the Coalition submitted written comments to the Chief of the Division.  The Coalition addressed a variety of concerns, including suggesting the Division:

  • Clarify the scope of the ETS;
  • Clarify various requirements under the ETS to be consistent with guidance the Division has provided in its Frequently Asked Questions;
  • Create more flexibility in the standard to account for the vastly different operations covered by the ETS;
  • Address the evolving science and public health guidance on COVID-19; and
  • Clarify and align notice requirements under the ETS with other California requirements.

The Coalition also walked through specific sections of the ETS and proposed changes to the regulatory text to address the identified concerns.  For example, the Coalition proposed:Cal ETS Comments

  • Limiting the scope of the exposed workplace to allow for separate shifts to be considered separate exposed groups, for purposes of identifying an “Outbreak” that triggers extensive testing and other requirements.
  • Limiting the scope of employees who must be notified of potential COVID-19 exposure to those individuals who were in close contacts with an infected individual.
  • Clarifying that the employer is not obligated to provide testing during the employee’s normal working hours and that employers may provide testing to employees at a testing site separate from their work location and/or through other means (e.g., home test kits or testing through health insurance).
  • Supporting recognition of CDC’s guidance for limiting testing for individuals who previously tested positive (for 90 or 45 days, depending on whether symptoms are experienced).
  • Excluding from testing, exclusion from work, and exclusion pay requirements those individuals who were fully vaccinated prior to a COVID-19 exposure.
  • Having the ETS reflect the hierarchy of controls to allow employers greater flexibility in choosing the types of engineering and/or administrative controls that work best with their operations to mitigate the risk of potential transmission.
  • Encouraging use of respiratory PPE by allowing employers to provide N95 respirators for employees for voluntary use without requiring adherence to all elements of Section 5144.
  • Directly tying outbreak determinations and continuation of outbreak status to work-related transmission of the virus in order to avoid placing the burden on employers to prevent non-work-related community spread (i.e., the Coalition proposed that cases that trigger a determination of an outbreak and duration of an outbreak should be found to be epidemiologically-linked to work and the workplace).
  • Changing the trigger for an outbreak to a percentage of the workforce rather than a set number of cases for all workplaces.
  • Eliminating the automatic second round of testing in the case of an outbreak unless three or more work-related cases are identified.
  • Incorporating feasibility into the requirements for employer-provided transportation to prevent disincentivizing employers from providing safe modes of transportation to get to work.

As a next step the Division will submit an amended rule to the Standards Board once it has decided on the changes to make to the ETS.  That may still be multiple months out.  As we wait for an amended rule, we continue to advise employers on how to comply with the ETS in its current form.  We will keep our blog updated on any further developments on the California ETS.

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Conn Maciel Carey LLP
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