On Nov. 30, 2020, the California Office of Administrative Law approved an Emergency Temporary Standard requiring new employer protocols for employers to implement to protect employees against workplace spread of COVID-19 which had been approved by the Cal/OSHA Standards Board on Nov. 19.
The OAL’s truncated 10-day review of the ETS
authorized by the Administrative Procedures Act means the ETS will become effective upon completion of OAL’s review when the ETS will be filed with the Secretary of State.
Many of the core COVID-19 protection requirements of the ETS are similar to Cal/OSHA’s “Safety and Health Guidance: COVID-19 Infection Prevention for Agricultural Employers and Employees
,” but the new regulation features many new requirements including requirements imposed on employers for “employer-provided” transportation and housing that employers may not actually control, extensive new protocols for workplace testing in instances of COVID-19 infections and exposures that employers may not be able to implement given limited availability of testing, requirements to maintain earnings and benefits of employees who are excluded from the workplace to check potential spread of COVID-19, and regulations that try (and in some cases fail) to implement provisions of AB 685 (Reyes) requiring employers to furnish employees and public health immediate notification of COVID-19 exposures and infections (see: “Steps for Implementing Policy to Comply with Notice Requirements under AB 685
” on FELS’ website).
Given the vagueness of many provisions of the regulation (which the agency either would not, or could not, clarify in the foreshortened comment process) Farm Employers Labor Service (FELS)
expects guidance from the agency in the coming days. The agency’s leadership have publicly hinted that guidance will be forthcoming, but timing in unclear.
The Department of Industrial Relations, Cal/OSHA and the Cal/OSHA Standards Board are expected to convene advisory committee meetings at four-month intervals as mandated by the Standards Board’s action directing the Emergency Temporary Standard. Given the many concerns expressed by employer stakeholders at the November 19 Standards Board meeting, employer representatives urged an advisory committee meeting at the earliest possible time.
FELS urges agricultural employers to review the text of the ETS noted above, and to carefully implement Cal/OSHA’s agricultural workplace guidance also noted above, which it has been enforcing since last summer as a requirement for adequate implementation of the Injury and Illness Prevention Program standard.
In the FAQ, the Agency indicates it will “…consider an employer’s good faith efforts in working towards compliance, but some aspects, such as eliminating hazards and implementing testing requirements during an outbreak, are essential.” The Agency also indicates it’s intent to convene a stakeholders meeting in December to “… explain the rule, answer questions and give interested parties an opportunity to provide feedback on the rule.” Further, “an advisory committee meeting will be scheduled soon after that. The Occupational Safety and Health Standards Board (OSHSB) has formally requested that Cal/OSHA report the results of this advisory process to the Board within four months.”