COVID: Which is the Appropriate State Entity

By: Mark Webb

Earlier this week, Governor Newsom vetoed Assembly Bill 1820 (Arambula), which would have required the Division of Labor Standards Enforcement (DLSE) within the Department of Industrial Relations (DIR) to establish a Labor Trafficking Unit. As introduced, this Unit would have been within the Division of Occupational Safety and Health (Cal/OSHA). Regardless, the Governor’s veto message stated, in part, that the California Civil Rights Department (CCRD) “is the appropriate state entity to take the lead in this effort”.


This notion seemed to be echoed, or at least subsumed, somewhat, in last Thursday’s meeting of the Occupational Safety and Health Standards Board’s (OSHSB) public hearing on its proposed non-emergency COVID-19 Prevention Standard. While no one was saying it directly, it seemed that an inordinate amount of oxygen in the hearing room was devoted to explaining the relationship between the proposed Cal/OSHA Standard and guidance from the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH).


It would seem to be a fair observation that CDC and CDPH are far more agile than Cal/OSHA when it comes to defining what an employer should do when there are COVID-19 cases (or outbreaks) in the workplace at any given point in time and reflecting the most current scientific knowledge.


Employers are vexed over the prospect of another two years of shifting obligations and reporting requirements. Labor and other worker advocates are vexed about the lack of exclusion pay in the proposed standard. In the meantime, the workers’ compensation system will have another year of presumptions – and all the various moving parts those provisions in the Labor Code have attached to them – and employers will have another year of reporting and notification requirements (and yellow tag exposure) should Assembly Bill 2693 (Reyes) get chaptered. Hopefully, the AB 2693 reporting requirements will be aligned with the non-emergency COVID-19 reporting requirements. That will be left up to Cal/OSHA and the OSHSB during the remainder of the rulemaking process.


Oh, and it is also likely that supplemental paid sick leave for COVID-19 cases will be extended to the end of the year – but not beyond.


Part of the rationale of the non-emergency COVID-19 regulations is to allow Cal/OSHA and the OSHSB time to create a permanent infectious disease standard.


Why? Have we not already seen by now, the CDPH is the “appropriate state entity to take the lead in this effort”? And “this effort” should be the continued efforts to protect the general population from a community-based disease.


The development of a permanent infectious disease standard is no longer dependent on the maintenance of the COVID-19 standard – if it ever was.


In California, the Workers’ Compensation Insurance Rating Bureau of California now says the pandemic is endemic and reports that over the last six months claims have plummeted. President Joe Biden said last weekend “the pandemic is over.”


Allowing the COVID-19 Prevention Emergency Temporary Standard (ETS) to expire at the end of the year does not absolve employers from their obligations to maintain a safe workplace. It does not immunize employers from following CDPH (and CDC) guidance on best practices at the workplace. Allowing the ETS to expire does not mean COVID-19 can be ignored as part of an employer’s risk assessment in its Injury and Illness Prevention Program (IIPP) – a point stated repeatedly by employer advocates testifying before the OSHSB.


What it would mean, however, is when January 1, 2023, appears on the calendar the management of COVID-19 as an occupational exposure would be consistent with its management as a community-based exposure. This would seem to be consistent with Governor Newsom’s decisions earlier this year as COVID-19 moved to “endemic” status. But the likelihood of this happening is close to nil.


The key question for the remainder of the year is whether the Board will reinstate exclusion pay. The rationale for exclusion pay in this context is compelling. What is less compelling is whether exclusion pay should be an obligation of an employer who is required by the State of California to keep a worker away from the workplace. There are alternatives to the current exclusion pay requirements in the ETS. But that is a discussion that needs to occur in the Legislature and not before the Board.


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.