California Employers Must Comply with the Cal/OSHA ETS While Uncertainty Continues with Federal ETS
On December 16, 2021, Cal/OSHA’s Standards Board voted to readopt the Cal/OSHA COVID-19 Emergency Temporary Standards (Cal/OSHA ETS) with several revisions. And just a day later the U.S. Court of Appeals for the Sixth Circuit lifted the stay on the federal Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (federal ETS). The timing of these announcements has created some confusion, with many employers wondering if the two announcements are related. They are not.
It is important to keep in mind that the Cal/OSHA’s ETS is separate and distinct from the federal ETS. The Cal/OSHA ETS was first adopted in November 2020, readopted with some changes in June 2021, and again readopted with more changes in December 2021. The newest version of the Cal/OSHA ETS will go into effect on January 14, 2022, regardless of the litigation surrounding the federal ETS.
With respect to enforcement of the federal ETS in California, Cal/OSHA cannot enforce the federal ETS until it is formally adopted by the Cal/OSHA Standards Board. States like California, with their own OSHA-approved occupational safety and health plans (also known as State Plans), are required to adopt the federal ETS verbatim or adopt a version that is “at least as effective as” the federal ETS. While there is a specified timeline for adoption, it is not clear how the timeline is affected by the current litigation. However, to date, Cal/OSHA’s Standards Board has not announced a special meeting to discuss the adoption of the federal ETS or otherwise. Currently, the Board’s next meeting is scheduled for January 20, 2022, at which time the federal ETS’ future in California will be decided unless an emergency meeting is scheduled.
Regardless of the federal ETS’ status, California employers must continue to comply with the Cal/OSHA ETS and be mindful of the changes that will take effect on January 14, 2022.