Predicting the Future of the Cal/OSHA COVID-19 Emergency Temporary Standard

By Kevin M. Brown and Charles P. Keller

With the enforcement of the Federal OSHA COVID-19 Emergency Temporary Standard (“ETS”) on hold pending consolidated review by the U.S. Court of Appeals for the Sixth Circuit after multiple legal challenges and a temporary stay by the Fifth Circuit on November 12th, many employers are asking what the future holds for the COVID-19 “Vaccine or Test” mandate for private sector workers in California as the Federal ETS requires private employers with more than 100 employees to require vaccination or weekly testing.

Background

Because California is one of 22 states that has its own occupational safety and health division, it can implement its own mandate so long as its rule is as strict or stricter than the federal regulation. The Cal/OSHA Standards Board was set to adopt the Federal ETS via a “Horcher” proposal (a verbatim adoption of the federal standard) last week, but ultimately elected to delay action pending the Sixth Circuit’s review. “Federal OSHA has stated that it will not require states that administer their own workplace safety and health programs, like California, to submit their notices of intent (to adopt the federal (standard)) while the stay is in effect,” the California Department of Industrial Relations said in a statement. 

Potential Changes to the Cal/OSHA ETS  

While the June 17th Cal/OSHA ETS still applies to California employers, the Standards Board is set to evaluate and potentially update the ETS at its December 2021 meeting. Some worker advocacy groups are calling for tougher rules, including expanding the definition of an “outbreak” to include non-employees present at the worksite, as well as maintaining employee access to testing and benefits.

Conversely, business advocacy groups have called for the Standards Board to not create a permanent COVID-19 workplace rule and instead replace the current Cal/OSHA ETS with a revision to the Injury and Illness Prevention Program standard, as well as require employers to follow the latest guidance from the California Department of Public Health. In a petition to the Standards Board, Western Steel Council Executive Director Greg McClelland wrote, “As our understanding of COVID-19 has grown and scientific recommendations have evolved, it has become clear that fixed regulations like the ETS are not suitable to address a disease like COVID-19 that is caused by a novel pathogen. The procedural requirements for the adoption and amendment of regulations — including emergency regulations — are simply not flexible enough to keep pace with evolving scientific knowledge and the protective recommendations arising out of it.” He further states, “We urge the Board to consider and acknowledge the difficulties it has encountered, despite its diligence and best efforts, in attempting to address the COVID-19 pandemic through an ETS that has proven to be captive to a rulemaking process that is far too rigid and lengthy to be current and effective.”

The Standards Board will meet on December 16th at 10 a.m.(PST), and Snell & Wilmer attorneys will monitor that meeting and provide further legal updates as more information becomes available.