Cal/OSHA board adopts ETS revisions

The California Occupational Safety and Health Standards Board voted unanimously to adopt changes to its COVID-19 emergency temporary standard in a heated nine-hour meeting Thursday.

In November 2020, the California Division of Safety and Health Administration voted to adopt an ETS, which took effect Dec. 1 and was set to expire in October 2021. Michigan, Oregon and Virginia have also passed standards, and the U.S. Department of Labor was ordered by President Joe Biden to create a federal ETS by March 15, which still has not been released.

In late May, Cal/OSHA proposed revisions to its ETS with provisions that included exempting fully vaccinated workers from wearing face coverings in rooms where everyone else is fully vaccinated, except for events with 10,000 or more attendees, exempting vaccinated workers from testing and quarantining and allowing for the removal of barriers. However, the ETS also would require employers to provide N95 masks to unvaccinated workers, require face coverings in mixed groups of vaccinated and unvaccinated workers and make testing available to unvaccinated workers, among other changes.

During the virtual board meeting, roughly 150 individuals had three minutes each to voice their concerns over the proposed changes. Some stated that the ETS was too restrictive and in conflict with U.S. Centers for Disease Control and Prevention guidelines, as well as the statewide June 15 reopening plans outlined by Gov. Gavin Newsom. Others argued that the revisions didn’t go far enough to protect workers from the virus.

One of the first commenters, Helen Cleary, leader of the Phylmar Regulatory Roundtable, an occupational safety and health forum, urged the board to postpone its decision until “conflicting messages in the proposed amendment and the lack of scientific evidence for them” was addressed.

Another caller voiced his concerns that the guidance was “out of step” with CDC guidelines and that the requirement that employers provide N95s for unvaccinated workers would require employers to compete with health care providers to purchase masks “for employees who do not believe in vaccinations and do not want to use them.”

Katie Hanson, Sacramento, California-based senior legislative director at the California Restaurant Association, said restaurants that have already suffered greatly financially would struggle to bear the cost of providing N95s to all unvaccinated workers, and asked that the board provide further clarification on employers’ responsibility in verifying vaccination status, documenting such status and maintaining those records.

After nearly nine and a half hours of comments, the board first rejected the adoption of the ETS revisions in a 4-3 vote. But at the urging of Chairman Dave Thomas, who noted that without change employers would face the restrictions they’ve had in place under the ETS for the past seven months, the board unanimously voted to adopt the change and create a committee to look at further rule revisions by the June 17 board meeting.

The revised emergency standards are expected to go into effect no later than June 15 if approved by the Office of Administrative Law in the next 10 calendar days. Some provisions go into effect starting on July 31, 2021.

More insurance and workers compensation news on the coronavirus crisis here.