January 24, 2022

Volume XII, Number 24

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January 21, 2022

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Cal/OSHA Standards Board Reschedules Vote on COVID-19 Emergency Temporary Standard Revisions

On May 20, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA) decided to table the expected vote on Cal/OSHA’s revisions to its COVID-19 Emergency Temporary Standard (ETS). Instead, the Standards Board requested that Cal/OSHA draft a new proposed regulation for the Standard Board’s consideration during a special June 3, 2021, meeting.

Cal/OSHA had drafted and published a proposed revision to the COVID-19 ETS, and the Standards Board planned to vote on the revision on May 20, 2021. At the last minute, however, on May 19, 2021, Cal/OSHA requested that the Standards Board not vote on the proposal. Instead of voting on the proposed revision during its May 20, 2021, meeting, the Standards Board heard public comment about the issues for more than three hours.

During the public comments section of the meeting, labor advocates, including WorkSafe, Inc., California Rural Legal Assistance, Inc. (CRLA), and the California Nurses Association spoke in support of more stringent COVID-19 regulations with continued use of face masks and social distancing protocols even for vaccinated individuals. The groups generally discounted recent updated guidelines from the U.S. Centers for Disease Control and Prevention (CDC) for vaccinated individuals and the easing of  mask wearing requirements. CRLA expressed concerns regarding falsification of employer vaccination recordkeeping.

California employer representatives, including Katie Hansen from the California Restaurant Association, Robert Moutrie from the California Chamber of Commerce, and Helen Cleary from Phylmar Regulatory Roundtable, all requested that the Standards Board table the vote and explained their concerns about vague definitions, the N95 masks proposals, and difficulties with vaccination documentation. Employer representatives repeatedly expressed concerns that obtaining N95 masks would be problematic and would compete with the needs of healthcare providers and first responders to purchase N95 masks. We (Kevin D. Bland and Karen F. Tynan), as members of Ogletree Deakins’ Workplace Safety and Health Practice Group,  testified during the public comments and requested more specific regulatory definitions, greater consideration of vaccinations as a preventive measure, and removal of the N95 mask requirements.

Following public comments, the Standards Board members discussed their individual preferences and decided to table the agenda item, until the June 3, 2021, meeting and vote. Cal/OSHA represented that it would publish a revised proposed regulation on May 28, 2021. Employers will have the ability to offer written public comment from May 28, 2021, through June 3, 2021. Employers will also have the opportunity to offer verbal testimony at the June 3, 2021, Standards Board meeting.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 141
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About this Author

Karen Tynan, employment lawyer, Ogletree Deakins
Of Counsel

Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

918 840 3150
Charles Thompson, Ogletree Deakins Law Firm, Employment Law Attorney
Shareholder

Charles L. Thompson IV counsels and defends employers in wrongful termination, discrimination, and other employment-related matters.  These areas include trade secrets and unfair competition, California and federal leaves of absence, ADA compliance, and wage and hour compliance.

Charles also represents employers in traditional labor law matters. He advises and represents employers in collective bargaining. He also represents employers in matters before the National Labor Relations Board, including in unfair labor practice and representation...

415-536-3430
Kevin Bland, Ogletree Deakins Law Firm, Workplace Safety and Construction Attorney
Shareholder

Kevin D. Bland joined Ogletree Deakins law firm in their Orange County office in 2011. Mr. Bland provides a wealth of experience in Health and Safety.  Before he began his legal career, Mr. Bland had nearly 20 years of construction, safety, and business experience.  In 2000, he launched his legal career after graduating cum laude from Whittier School of Law. Mr. Bland holds a Contractor’s “A” License and his practice focuses primarily on safety, risk management, Cal-OSHA regulatory rulemaking, and Cal/OSHA citation appeals. He counsels and represents various...

714-800-7935
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