On June 9, the Occupational Safety and Health Standards Board (OSHSB) convened a special meeting for the second time in two weeks, this time to consider the withdrawal of the proposed regulations that the Board adopted at its June 3 meeting, amending in significant ways the Emergency Temporary Standards (Cal/OSHA COVID-19 Regulations). The proposed amendments and readopted regulations were pending review at the Office of Administrative Law (OAL) before they were to take effect on June 15.
The Board withdrew the proposed regulations in part because the regulations did not align with recently issued California Department of Public Health (CDPH) guidance providing that fully vaccinated individuals are not required use face coverings in most settings.[1] The proposed regulations would have imposed more restrictive face covering requirements on “fully vaccinated” employees[2] in their workplaces, allowing such individuals to go without the use of face coverings in only very limited circumstances.[3]
The Board’s withdrawal of its June 3 amendments to the Cal/OSHA COVID-19 Regulations means that the regulations that the Board initially promulgated in November 2020 will remain in effect until such time as the Board takes action to amend or repeal the regulations or they expire. As a result of the Board’s action, for the time being, all employees, including fully vaccinated individuals, must continue to wear face coverings at work, unless the employee satisfies one of the limited exceptions to such requirement.
At its regularly scheduled June 17 meeting, the OSHSB will again consider amendments to and adoption of the Cal/OSHA COVID-19 Regulations. At that time, the Board may consider adoption of an amended version of the June 3 proposed regulations which align them with the general guidance provided by CDPH concerning the use of face coverings by fully vaccinated individuals.
Liebert Cassidy Whitmore attorneys are actively monitoring this developing area of the law and will provide updates as necessary. Once the OSHSB takes final action on amendments to and re-adoption of the Cal/OSHA COVID-19 Regulations, Liebert Cassidy Whitmore will provide clients an update concerning the availability of an updated model COVID-19 Prevention Program (CPP) that complies with the amended regulations.
[1] The OSHSB also withdrew the proposed regulations for reasons related to the Administrative Procedures Act (APA) (Gov. Code §§ 11340-11361.) Under the APA, the Office of Administrative Law (OAL) may not approve more than two (2) re-adoptions of an emergency regulation. (Gov. Code § 11346.1(h).) As a result, if the OAL approved the proposed regulations submitted by OSHSB after its June 3 meeting, the OSHSB would only be permitted one more opportunity to amend and readopt such regulations.
[2] See proposed regulations (8. C.C.R § 3205(b)(9)), defining “fully vaccinated” to mean the “employer has documentation showing that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine.” The June 3 Proposed Regulations are available at the following web address: https://www.dir.ca.gov/oshsb/documents/Jun032021-COVID-19-Prevention-Emergency-txtbrdconsider-Readoption.pdf
[3] The proposed regulations excepted “fully vaccinated” employees (See footnote 2) from the face covering requirements where the employee was working outside and does not present any symptoms associated with COVID-19 (8 C.C.R § 3205(7)(A)(6)) and where the employee was in a room where all other persons are fully vaccinated and do not present any symptoms associated with COVID-19 (8 C.C.R § 3205(7)(A)(1)).
This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.