Cal / OSHA publishes initial draft text for COVID-19 permanent draft regulation

On September 17, 2021, the California Division of Occupational Safety and Health (Cal / OSHA) released for discussion the initial draft text of the proposed COVID-19 Standing Regulations, which, if passed, would be subject to renewal or expiration after two years, and would replace the current Temporary Emergency Standards (STE). Stakeholders will have the opportunity to provide comments on the draft at an advisory committee meeting on September 23, 2021, and members of the public can provide written comments no later than October 4, 2021. President Biden’s announcement of the White House decision COVID-19 action plan, exit from the pandemic, it does not mandate vaccination or impose an obligation to test instead of vaccination. Cal / OSHA indicated at its regular meeting on Sept. 16, 2021, that it will separately assess how to meet a federal OSHA requirement for workplace vaccination after federal OSHA released its own standard for workplace vaccination. urgently to this end, which may occur outside of the context of a further revision of the Cal / OSHA ETS.1

Key points to remember

Launch of process towards longer-term regulation indicates COVID-19 protocols could be here to stay: As drafted, the draft NP would apply for two or three years after the effective date, and includes a reference to the goal of implementing a permanent general standard on infectious diseases of ‘here there. These conditions exceed the maximum times allowed for emergency regulations (and subsequent “re-enactments”) under California Government Code Section 11346.1 and related executive orders, under which Cal / OSHA implemented the ‘Current ETS. Although the Cal / OSHA Standards Board has discussed at length various measures that could suggest goalposts end COVID-19 regulations, the PS project is currently being presented as a two or three year proposal, with no reference to defining measures, such as the COVID-19 case. rates, hospitalization rates, intensive care rates, data on workplace epidemics or other possibilities still under study. The proposed extended duration as boxed signals that COVID-19 protocols may be here to stay, even after the pandemic is a distant (or even not so distant) memory.

Incorporation of national / local COVID-19 requirements / definitions: The PS project seeks to enhance flexibility by expressly incorporating California Department of Public Health (CDPH) guidelines and recommendations by reference. Specifically, the definitions of “close contact” and “infectious period” in the draft SP would be subject to change if the CRPD promulgates different definitions. The SP project would also require employers to follow CRPD requirements and / or guidelines, where available, regarding the exclusion of COVID-19 cases and / or close contacts. Likewise, although the PS draft appears to maintain masking requirements for unvaccinated employees, it would require employers to provide and guarantee the use of face coverings whenever required by the CRPD.

Elimination of the stand-alone COVID-19 prevention plan: In a significant change, the PS project would eliminate the need for a COVID-19 prevention plan (CPP). Instead, an employer would be required to “address the risk of COVID-19 in the workplace through their injury and illness prevention plan (IIPP).” At a minimum, the PS project would require employers to assess the risks of COVID-19, train their employees on the risks, and investigate cases of COVID-19 in the workplace. Under the draft SP, employers of all sizes would be required to document training, which is a departure from current IIPP requirements.

Face covers, respirators and personal protective equipment (PPE): As noted above, the PS project would require employers to provide and ensure the use of face coverings whenever required by the CRPD. In the absence of CRPD requirements, the rule requires by default that unvaccinated employees wear face coverings indoors or in a vehicle with others. The proposed NP would also change voluntary and mandatory respiratory protection requirements. Employers are now only required to provide respirators (N95) for voluntary use only to employees identified by a healthcare professional “as being at increased risk of serious illness from COVID-19, regardless of their vaccination status.” This is a waiver of the current ETS, which requires employers to provide respirators on request to unvaccinated employees.

Vaccine verification and record keeping requirements: The draft SP defines “fully vaccinated” to mean that the employer has “an electronic or physical copy” of the vaccination record indicating (1) the manufacturer of the vaccine and (2) the date of the last dose, including booster doses. This language appears to prevent an employer from relying on employee self-certificates to verify immunization status. The PS project would further require employers to retain COVID-19 vaccination records for two years beyond the period “during which the records are needed to meet the requirements” of the PS draft. As a result, vaccination records will likely need to be kept for at least two years after the rule expires, if not longer. In addition, the draft PS would expressly incorporate the requirement in section 6409.6 of the Labor Code, subsection (k), that employers must keep copies of all AB-685 notices of a COVID- case. 19 on site for a period of at least three years. The SP project also maintains previous record-keeping requirements for COVID-19 cases.

Revised ventilation requirements: The PS project has expanded the ventilation requirements. Employers would be required to review the CRPD and Cal / OSHA guidelines regarding ventilation and implement necessary changes and provide specific options for potential implementation. The draft SP further provides that employers subject to Title 8, Article 5142 of the CCR (Heating, ventilation and air conditioning (HVAC) systems with mechanical drive to provide minimum ventilation of the building) and 5143 (Mechanical ventilation systems ) review and comply with these sections, as applicable.

COVID-19 Notification and Testing Requirements: The PS project would require employers to provide COVID-19 testing to all close contacts during working time and at no cost to the employee, regardless of their immunization status. The PS project eliminates the previous exception for asymptomatic and fully vaccinated employees. The PS project continues to exclude from the testing requirement employees who have recovered from COVID-19 and remained asymptomatic for 90 days after the initial onset of symptoms or their first positive test, as the case may be. The PS draft does not impose any additional testing requirements in a non-outbreak scenario. The draft NP would expressly require employers to comply with the notice requirements under section 6409.6 (a) and (c) of the Labor Code. Although this represents a simplification of the previous language, the requirements remain the same.

No provision for exclusion allowance, hand washing and cleaning / disinfection procedures: The draft PS removes all reference to “exclusion allowance”. As such, any continued obligation for paid COVID-19 leave would be left to the legislature. If passed, the draft PS paves the way for a potentially busy legislative session on paid leave. The PS draft also removes any express requirements for hand washing or cleaning / disinfection procedures.

Revised requirements in the event of an outbreak: In the PS project, all epidemics, minor or major, would be governed by a single section. As before, multilevel testing obligations and other requirements are imposed depending on the severity of the outbreak (that is to say, three positive cases in 14 days or 20 positive cases in 30 days). There are two changes to note in particular. First, as with close contact testing requirements, vaccinated employees are not exempt from testing. Second, outbreaks involving 20 or more positive cases in 30 days (that is to say, which was previously defined as a “major” outbreak, are now reportable to Cal / OSHA.

Accommodation and transport provided by the employer: The SP project maintains most of the requirements for employer-provided housing, with the exception of cleaning and disinfection requirements. The most notable change is that isolation requirements for COVID-19 cases would apply to homes in which all residents are fully vaccinated. With regard to employer-provided transport, the PS draft removes most of its specific requirements and simply orders employers to comply with Article 3205 of 8 CCR. Significantly, the PS draft removes any exceptions for fully vaccinated employees in the vehicle and the rule continues to set requirements regarding the allocation of transport.

And after?

California employers will need to continue to meet the core obligations set out in the current ETS until Cal / OSHA publishes a second re-adoption of the ETS or adopts longer-term standards. The PS project would represent a simplification of Cal / OSHA’s COVID-19 workplace requirements, compared to the current ETS. Would removing the CPP provisions mean that an employer could completely ignore their plan? No, but the placement of the RPC in the IIPP should allow employers more flexibility to implement procedures appropriate to their workplace.

The PS project signals Cal / OSHA’s intention to continue its enforcement of COVID-19, including issuance of citations. As such, employers with operations in California should continue to follow the requirements of the currently applicable ETS, while preparing to ensure that they have an IIPP that includes COVID-19 protocols and document their efforts to implement and enforce COVID-19 safety measures in the workplace. .

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