How is Cal OSHA Addressing Federal OSHA’s COVID-19 Emergency Temporary Standard?

NOTE: Federal employees and federal contractor employees are captured by the vaccine mandate and must comply per applicable requirements. The federal OSHA ETS applies to private employers with over 100 employees not having federal contracts.

Cal OSHA, over the past few months, has been working on the redrafting of their existing COVID-19 Prevention ETS that was scheduled to be adopted December 5.

The federal OSHA ETS supersedes State OSHA programs, resulting in the requirement for Cal OSHA to meet/exceed the new federal ETS within 30 days.

Yes, federal courts have stayed (temporary hold) the federal ETS and more are reviewing the legality of the ETS. However, being that we do not know the outcome of the courts’ decision (anticipated decision is November 15), employers must continue to prepare policy and procedures in the event the stay is retracted.

The word on the street is that Cal OSHA is going to use the Horcher rule to adopt the fed OSHA ETS language verbatim or “substantially similar”. The Horcher rule allows State programs to bypass legislative activity if they adopt fed OSHA standards as is. The new fed language is proposed to be added as NEW Cal OSHA Section numbers, 3205.5 – 3205.8, exact language not available as of this writing.