January 18, 2022

Volume XII, Number 18

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Federal OSHA’s COVID-19 ETS: Will It Change the Next ETS for California?

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The California Division of Occupational Safety and Health (Cal/OSHA) was planning to update and adopt new language for the California COVID-19 ETS that would take effect in January 2022. However, California’s proposed language for the revised ETS does not match the language of OSHA’s ETS, leaving many wondering if California will now revise the proposed language to bring the California ETS into alignment with the federal standard and proceed with the “Horcher” adoption process to quickly adopt the federal OSHA requirements.

In California, the ETS took effect on November 30, 2020, and the workplace standards were updated on June 17, 2021, to take in account that vaccines were available. The updated ETS also included requirements for vaccinated and unvaccinated workers. While the Occupational Safety and Health Standards Board voted to adopt proposed revisions to the ETS in June, it did so with reservations about some provisions. The Standards Board also voted to form a subcommittee to advise on further revisions to the ETS in light of these reservations.

While the California standard requires that vaccination status must be documented, it does not specify a particular method. Employees are to provide proof of vaccination and can self-attest, only requiring that the employer maintain a record of who self-attests.

On September 17, 2021, Cal/OSHA released for discussion initial draft text for proposed permanent COVID-19 regulations, which if adopted would be subject to renewal or expiration after two years and would replace the current ETS. The California ETS was scheduled for re-adoption, with revised language, to take effect on January 14, 2022.

The California ETS does not mandate vaccinations or set forth a requirement to test in lieu of vaccination. Cal/OSHA has indicated that it will evaluate separately how to respond to a federal OSHA requirement for vaccinations in the workplace—which may occur outside the context of a further revision to the California ETS. We will likely have additional information from the California OSHA Standards Board on their next actions for adoption of updated regulations shortly.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 308
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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
Martha Casillas Employment Attorney Ogletree Deakins California Law Firm
Of Counsel

Martha I. Casillas has extensive experience in employment law, as she has defended both major corporate clients and government agencies through every stage of potential and actual disputes.  This wide range of representative experience provides her with a unique perspective on workplace safety litigation and settlement negotiation to help meet her client’s goals.

From August 2018-21, Ms. Casillas served as counsel for the California Division of Occupational Safety and Health (Cal/OSHA).  Ms. Casillas represented and advised the Division on all aspects of enforcement and...

714-800-7917
Jennnifer Yanni Labor & Employment Attorney Ogletree Deakins Law Firm
Associate

Jennifer Yanni has spent the entirety of her legal career litigating labor and employment issues. She began her practice representing plaintiffs against national corporations and second-chaired an arbitration that resulted in a six-figure award in a rare reverse-discrimination suit. For the past five years, she has represented employers on a wide range of labor and employment issues. She has defended employers in a variety of industries in cases involving discrimination on the basis of race, sex, and disability; wage and hour disputes involving claims of unpaid overtime...

714-800-7900
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