The 2020 Holiday Season will not be a particularly festive one for employers in California. The reasons are many and varied – most centered on the ongoing personal and economic trauma wrought by the COVID-19 pandemic. It is in this distressed environment that the Occupational Safety and Health Standards Board (OSHSB) promulgated its COVID-19 Emergency Temporary Standards (ETS).
Specifically, on November 30, the Office of Administrative Law (OAL) did its best impersonation of an online content editor with its formatting critique and subsequent approval of the now operative ETS.
The ETS became effective immediately. Employers – and likely many others – are now in a panic as they try to figure out what to do before year-end to be in compliance. By now, many employers are also trying to figure out what more they will have to do in order to be compliant with both the ETS and Assembly Bill 685 (Reyes) when the latter becomes effective on the first of January. Medium-sized and smaller employers, many of whom present no significant risk of employee exposure to COVID-19, are holding their breath and dealing with another bout of regulatory fatigue.
Not to worry. While the Department of Industrial Relations (DIR) has published a prodigious library of documents to aid in compliance with the new ETS, DIR has also assured us that “Cal/OSHA will convene a stakeholder meeting in December that will include industry and labor representatives to review the requirements of the emergency regulation and solicit feedback and recommend updates.”
So, as we near the end of a tumultuous 2020, perhaps there is one ask that would seem to be so minor that it will find its way into a guidance or some other missive from Cal/OSHA before year-end. DIR has been helpful – and prolific – publishing numerous aids for employers to comply with AB 685 and the new ETS. The California Department of Public Health (CDPH) has also published several useful aids for issues regarding AB 685 falling within their jurisdiction.
And, to quote Cal/OSHA Chief Doug Parker:
“For employers who need time to fully implement the regulations, enforcement investigators will take their good faith efforts to implement the emergency standards into consideration. However, aspects such as eliminating hazards and implementing testing requirements during an outbreak are essential.”
There is no mention of AB 685 at all in the DIR News Release announcing the approval of the ETS. There is one oblique reference to AB 685 in the ETS FAQs relating to what constitutes an “exposed workplace.” For the moment, the definition of exposed workplace includes but is not limited to the definition of “worksite” of the COVID-19 case defined in AB 685. That may not always be the case if the CDPH adopts a new definition of “infectious period” – a phrase defined as “high-risk exposure period” in the ETS. This is not the only instance where the ETS makes subtle changes or additions to the AB 685 framework.
But compliance will be expected with both, and the exposure to penalties is cumulative.
What we have now is essentially an IKEA moment – employers can see the parts that are required to be used to build a safer workplace, but there are no instructions on how to make these parts fit together. It would be nice if, before year-end, DIR would provide some directions, not just for the parts – but for the whole. Employers and workers would benefit equally from such a benevolent gesture.
Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.