Unclear timing for California COVID-19 emergency standard

After a wild and bumpy ride with the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS), most California employers were relieved that the ETS would be phased out later this year. However, last-minute debate at the Cal/OSHA Standards Board over a proposed two-year COVID-19 standard makes it likely that the ETS will remain in effect through mid-February, meaning California employers will be bound by the ETS, including his Exclusion payment requests longer than expected.

The transition may not be seamless

As of Fall 2020, California employers must comply with the ever-changing ETS. The ETS has been reintroduced several times, resulting in constant changes to COVID-19 protocols in the workplace. As an emergency regulation, an ETS can typically only be added twice. However, given the unprecedented nature of COVID-19, Gov. Gavin Newsom took the extraordinary step of issuing an executive order authorizing the ETS to be re-adopted for the third time by the end of 2022.

The Cal/OSHA Standards Board has been working for months on a non-emergency COVID-19 standard that would replace the current ETS when it expires.

Given the months of planning process, we were hoping for an orderly and seamless transition between the December 31st ETS expiry and the January 1st 2023 effective date of the Non-Emergency Standard. It now appears that this may not be the case.

More flexible approach expected

The proposed non-emergency standard generally offers a more flexible approach for employers to manage COVID-19 in the workplace as part of their regular injury and disease prevention program (IIPP). Each proposed draft of the non-emergency standard removed the obligation for employers to make severance payments for workers absent from the workplace due to COVID-19 infection or exposure.

The ongoing debate over whether to keep the exclusion payment in the standard has thrown an unexpected kink in the process and schedule. Labor supporters opposed any non-emergency standard that did not include exclusion payments. So far, Cal/OSHA and the Cal/OSHA Standards Board have held the line, and each version of the proposal has removed the cut-off payment requirement.

However, at the Cal/OSHA Standards Board’s last meeting in October, four of the seven board members shared workers’ concerns and essentially requested that cut-off payments be included in the standard. It remains to be seen whether Cal/OSHA will respond with an overhaul of the language. This continued debate and delay means the Board will not vote to adopt the Non-Emergency Standard until its December 15 meeting.

timing is everything

Even after the Board approves a non-emergency standard (with or without a cut-off payment) on December 15, it still needs to be reviewed by the Office of Administrative Law (OAL) and submitted to the Secretary of State before it becomes effective. Here, a mysterious administrative process could lead to the ETS continuing to operate beyond the end of the year.

The non-emergency ordinance acts as a certificate of compliance. This generally refers to the process by which an emergency rule becomes a permanent rule when the Board adopts a non-emergency standard while the emergency standard is in effect.

When an agency provides OAL with a Certificate of Compliance, the Emergency Regulation remains in effect pending OAL’s review. If a certificate of compliance is provided, the maximum time limit for OAL verification is 30 working days, although OAL may act sooner. Since final board approval of the non-emergency standard will come at the last minute, these obscure administrative rules will likely come into play.

If the board approves the non-emergency standard on December 15, it is likely that the attestation of compliance will be submitted to OAL shortly thereafter. OAL then has up to 30 working days to approve the regulation and submit it to the Secretary of State.

The ETS will remain in effect while OAL conducts its review, even if it extends beyond the original ETS expiration date of December 31st. So if the OAL takes 30 days to review and approve the non-emergency standard, the ETS could remain in effect until mid-February. Even if OAL acts earlier, it seems inevitable that the ETS will remain in effect beyond December 31st and into January.

What should employers do?

With the ETS potentially remaining in effect into the new year, employers must maintain their COVID-19 protocols until the non-emergency regulation comes into effect. Employers should continue to identify, assess and correct COVID-19 hazards in the workplace. This means contract tracking, outbreak reporting, individual notification requests, and lockout payments may take a little longer than we anticipated.

A lot is still up in the air for Californian employers. In theory, Cal/OSHA still has time to release the revised proposed language in time for the board to consider at its December 15 meeting. Employers are waiting with bated breath to see if Cal/OSHA gives in to pressure from worker groups and puts severance payments back into the mix.

California employers will need to monitor developments closely to see if the proposed language continues to change. Due to the procedural requirements of the law, the ETS is expected to remain in force until 2023. California employers must be prepared to continue complying with the ETS beyond the end of the year and then adapt to comply with the non-emergency regulation.

Benjamin M. Ebbink is an attorney with Fisher Phillips in Sacramento, California. Abby Harrington Puztulu is an attorney at Fisher Phillips in San Francisco. © 2022. All rights reserved. Reprinted with permission.