To the surprise of no one, and despite employer groups’ vocal opposition, the Cal/OSHA Standards Board approved the final version of the state’s COVID emergency temporary standard. The Board vote was 6-1, with management representative Kathleen Crawford casting the only no vote.
The pandemic has officially turned into an endemic, and few jurisdictions continue to have active COVID regulations. Anecdotal evidence – what most people see every day – is that of those testing positive for the disease, few require medications of any kind, and few are ill beyond a bad flu.
The ETS is, in the words of Farm Bureau’s Bryan Little, “obsolete.” But Board chair David Thomas countered, “I understand a lot of your concerns,” but “this is the best protection we have.”
Once approved by the Office of Administrative Law, the controversial regulation remains in effect until December 31st.
The Division of Occupational Safety and Health is expected to seek a Certificate of Compliance with OAL to make the ETS semi-permanent. In the meantime, the Division will hold advisory committee talks on an eventual replacement, and it’s unclear when that regulation could be in place.
The fight now will take shape over a permanent regulation on airborne infectious disease protections for general industry.
Says Chris Laszcz-Davis, the other management representative and the one who voted yes, “I would hate to see [the ETS] become a permanent regulation.”
Opponents acknowledged that this version of the ETS is a slight improvement over previous iterations while nonetheless advocating for an outright repeal of the emergency standard.
New DOSH Chief Jeff Killip says, “It’s important for worker protections to remain in place. There are still over 2,500 [COVID] cases and over 20 deaths a day. The ETS provides protection against one of the greatest workplace hazards we’ve seen since the establishment of Cal/OSHA nearly 50 years ago.”
The ETS, take three, removes “differing requirements for vaccinated and unvaccinated employees,” says Eric Berg, DOSH deputy chief for health. “We have moved away from the use of partitions and six feet of physical distancing,” with more emphasis on improving outside air supplies and air filtration. Cleaning and disinfecting requirements also have been removed in light of data that show it is unnecessary.
Requirements for masking are relaxed and are now triggered by orders from the California Department of Public Health. CDPH requires masks in emergency shelters, cooling and heating centers, health care settings, correctional facilities, detention centers, homeless shelters, long-term care settings, and adult and senior-care facilities.
“Protections during outbreaks have been improved to concentrate efforts where the risks are greatest,” Berg says. Additional testing is required during major outbreaks.
Employer representatives object to the continued use of exclusion pay for exposed employees, especially those who refuse to be tested. Megan Shaked of the Conn Maciel Carey law firm called the provision a “perverse incentive.”
Michael Miiller, director of governmental affairs for the California Association of Winegrape Growers, continued his call for the ETS repeal. “It creates confusion and ambiguity and actually threatens workplace safety,” he says.
Pamela Murcell, president of the California Industrial Hygiene Council, calls the changes to the ETS “a reasonable approach.” But she asks, “Do we even need a permanent COVID regulation?”