Yesterday, 5/20/21, Cal OSHA Standards Board Advisory Committee met with agenda to hear public comments and vote on the Division’s proposed changes to the COVID-19 Prevention Standard, CCR Title 8 Section 3205-3205.4 – Emergency Temporary Standard (ETS) set to expire October 2, 2021.

Three primary proposed changes included:

  1. Modifications to lessen restrictions for outside face covering usage for fully vaccinated persons, where indoor face covering requirements were unmodified.
  2. Lessened restrictions for environments where ALL employees (100%) were vaccinated.
  3. After July 31, 2021, employers would be required to “provide” N95 respirators (filtering face pieces) to those employees NOT fully vaccinated on a voluntary basis.

Public commenters representing employers / employer groups expressed their concerns with the following common theme:

  1. The modifications to the standard would create a division, two classes of employees, posing discrimination concerns.  The two classes would be those vaccinated, those who are not.  Legally employers cannot require all employees to get vaccinated, nor can employers require proof of vaccination. Employees may volunteer their vaccination status, but otherwise Employers cannot require employees to divulge vaccination status.
  2. 100% vaccinated employee populations would be very rare, virtually infeasible to achieve. Employers cannot force vaccination and many people have valid religious, medical, or other reasons not to vaccinate.
  3. Provision of N95 respirators. Why N95s? We have data that face coverings have proven effective. Where are the tens of millions of N95s going to come from? We are approaching California Wildfire season which puts strain on N95 availability, adding this COVID-19 requirement would surely compromise the supply chain, potentially putting employees in harms way depending on which employers can get their hands on N95s. These same employer groups presented actual Workers’ Compensation data that demonstrated a very small percentage of total California infections were work-related.

Those speakers representing the labor group voiced concern of the ongoing threat of infection, particularly to the lower income groups and certain industries requiring close-contact labor activities. They wanted Cal OSHA to remain diligent with enforcement of the existing regulation, implementing no exceptions or relaxation of requirements. The ex-Chief of Cal OSHA presented the idea that Cal OSHA should consider rescinding the COVID-19 ETS or just apply it to industries of particular concern, he mentioned meat packing.

This would allow Cal OSHA to fall back on the Injury and Illness Prevention Standard,  CCR Title 8 Section 3203, to cite employees for COVID-19 Prevention violative conditions based on most-current CDC and CDPH guidance. He noted that Cal OSHA was successful in using 3203 to cite COVID-19 related violations from March 2020 through October 2020 (until the COVID-19 Prevention Standard was approved).  Reasoning is that it takes Cal OSHA approximately six months to move through regulatory development and by the time it is drafted and approved it is obsolete especially when the regulation addresses such a fluid situation as we have lived in since March 2020.

NOTE:  The changes proposed for yesterday’s meeting were already several months old.

In OSTS opinion, based on the Advisory Committee’s 5/20/21 agenda, it was the best possible outcome that the vote on proposed changes was postponed.  Some assumed, without reading the proposed changes, that the changes would have lessened the burden on Employers while increasing employee safety.  After hearing the public commenters, both sides, the changes would have been negative for both.

OSTS will stay on top of activities related to this issue and keep you updated. Please feel free to contact OSTS for your safety and health needs or questions.

Mike Geosano