Cal/OSHA Board Approves Emergency COVID-19 Workplace Safety Regulations
Written by: Virginia McCormick, NES, Inc.
Newly approved regulatory actions could serve to better protect California workers from COVID-19 and other infectious diseases.
Cal/OSHA to Draft COVID-19 Workplace Safety Regulations Following Board-Approved Petition
On September 17, 2020, the Occupational Safety and Health Standards Board of the California Division of Occupational Safety and Health (Cal/OSHA) approved the drafting and eventual implementation of COVID-19 workplace safety regulations.
The guidance comes as a result of the Board’s approval of Petition File No. 583. The petition, which was received by the Board in May of 2020, was jointly filed by the Labor & Employment Committee of National Lawyers Guild and Worksafe.
Two new standards were proposed by the petition. The first is a temporary emergency standard that would provide protection to California workers exposed to COVID-19 who are not covered under the State’s Aerosol Transmissible Diseases standard (California Code of Regulations, Title 8, section 5199 [8 CCR 5199]). The second is a “permanent rulemaking effort” that would seek to protect workers from infectious diseases as a whole – including novel pathogens such as COVID-19.
A proposal for the temporary emergency regulations is expected to be submitted before November 19, 2020, at which point the proposal will be evaluated and potentially adopted; however, the consideration of permanent regulations, while approved by the Board, will be discussed by a representative advisory committee after the current pandemic subsides.
The approved petition proposed two new Cal/OSHA regulations: a temporary emergency standard to protect all workers exposed to COVID-19, and a permanent standard to protect workers from infectious diseases.
While the petition was approved by the entire Board, there was noted concern from the staff evaluation questioning the need for new regulations. Many businesses in California have already developed and begun to integrate COVID-19 workplace safety and prevention programs without the threat of regulatory force. While these concerns were acknowledged in the approval text, the Board asserted that, in this case, establishing enforceable regulations would “enhance worker safety” overall.
In order to address the concern of over-regulation more directly, the approval text also noted that representatives from the California Department of Public Health and County & City Public Health Officers must be invited to join the temporary emergency regulation drafting process. This is done to accurately gauge the effectiveness and realistic implementation of any proposed regulations.
For more information on how business owners are properly implementing COVID-19 Prevention Programs for their workplaces, see the July 2020 NES blog Establishing an Effective COVID-19 Prevention Program.
COVID-19 Workplace Safety Regulation: The Temporary Emergency Standard
The first of the two regulatory actions proposed in the petition makes up the majority of the approval text. The temporary emergency standard would serve to protect employees, “in any facility, service category, or operation” who may be exposed to COVID-19 and are not already covered by 8 CCR 5199.
Currently, 8 CCR 5199 requires certain employees be protected from exposure to aerosol transmissible diseases (ATDs). The existing standard covers, “medical offices, certain laboratories, correctional facilities, homeless shelters, drug treatment programs, and any other employer that Cal/OSHA informs in writing that they must comply with the ATD standard.”
Temporary emergency regulation would likely enhance COVID-19 workplace safety by allowing Cal/OSHA more enforcement capabilities.
While employers not included in the scope of the existing ATD standard must still comply with more general workplace safety requirements, a temporary emergency standard would allow Cal/OSHA to enforce COVID-19 exposure safety procedures more easily.
The petition suggested a framework similar to California’s Injury and Illness Prevention Program (8 CCR 3203). The suggested framework for the temporary emergency standard includes provisions for:
- Additional procedures to identify and evaluate COVID-19 workplace hazards
- Procedures related to employees who may have been exposed to COVID-19, who have been diagnosed with COVID-19, or who have symptoms of COVID-19
- Preventative measures, including personal protective equipment (PPE)
- Employee training
- Reporting requirements
COVID-19 Workplace Safety Regulation: The Permanent Rulemaking Effort
According to California Labor Code Section 142.2, the Board must make time available to consider new or revised orders or standards proposed. The second regulatory action referenced in the petition, in pursuant to California Labor Code § 142.2, requested a permanent rulemaking effort be considered in order to protect all workers from infectious diseases, including novel pathogens such as COVID-19.
While the second regulatory action was approved, it will likely go unaddressed for now. At the end of the Board’s approval text, Cal/OSHA was requested to, “convene a representative advisory committee after the COVID-19 pandemic subsides.” California Labor Code § 142.2 gives the Board a time limit of six months to address a proposal such as this; however, given the circumstances, this particular regulatory action may not occur within the typical timeframe.
While these regulations are in the early stages of development, businesses should start considering the workplace safety impacts now.
Workplace Safety in the Time of COVID-19
A proposal for the emergency regulation is expected to be submitted for review no later than the November 19, 2020 Board meeting. If the proposal is approved, the regulation will be assessed and enacted. California business owners will be expected to comply with the new regulation.
Employers should always strive to work with local and state health departments to ensure current guidelines are being followed. As the pandemic situation progresses and changes, employers must be aware that their current procedures and programs may need updating to keep up with changing guidelines.
Currently, implementing procedures for face coverings, social distancing, sanitization, and maintaining healthy operations is a great way to define and develop a program. However, these are only a handful of items that need to be addressed in an effective prevention program. Employers must tailor their programs to their own specific needs. For this, NES can help.
As a leader in health and safety training, NES provides on-site and online services for a wide variety of industries. No matter what your operations, we can help provide training, fit testing, regulatory guidance, and many more services to protect your employees. For more information, check out the NES COVID-19 services page.
For more information on how we can help you manage the health and safety of your employees, please contact NES at 916-353-2360 / 1-800-NES-ADVISE (1-800-637-2384) or office@nesglobal.net.
References:
Proposed Petition Decision – Petition File No. 583