Cal/OSHA Recommends Emergency Virus Rule, State Board to Decide

California’s Occupational Safety and Health Standards Board will decide on whether to accept a state worker safety agency’s recommendation to issue a temporary emergency order forcing employers to establish coronavirus protection plans.

Citing resource limitations, a California safety standards board staff evaluation said on Tuesday that new regulations, whether in the form of an emergency or permanent regulation, “are not likely to significantly improve employee outcomes.”

But it’s up to the board to decide on whether to craft a rule.

The latest recommendation comes after Worksafe, a California workers’ advocacy group, and the National Lawyers Guild, petitioned the board on May 20 to create the provision to protect workers in “essential industries” from virus infections. Their petition had gained the backing of California’s Division of Occupational Safety and Health, also known as Cal/OSHA.

The idea was to use California’s aerosolized transmissible disease standard protecting health-care workers from airborne diseases (8 CCR 5199) as a model and expand the scope to cover other industries.

On July 30, Cal/OSHA issued a memo to Christina Shupe, executive officer of the Occupational Safety and Health Standards Board, stating that “given the unprecedented nature of the COVID-19 pandemic, a new standard that will enhance Cal/OSHA’s ability to protect workers is essential to keep workplaces safe.”

The agency added that a specific coronavirus emergency regulation “would provide clear instructions to employers and employees on what needs to be done to protect workers from COVID-19, eliminating any confusion and enhancing compliance.”

But on Aug. 10, a standards board staff evaluation recommended the Worksafe petition be denied, stating that continued enforcement of existing regulations and consultative outreach “is a more efficient and likely effective use of the Cal/OSHA’s limited resources.”

Stephen Knight, executive director of Worksafe, told Bloomberg Law that Cal/OSHA’s recommendation to issue an ETS is “very strong and clear and direct,” adding that the coronavirus pandemic “is exactly the type of catastrophe intended for an emergency regulation to address.”

California is among 22 states that have their own occupational safety and health agencies covering private workers as well as state and local government employees. The states are allowed by federal law to enact regulations as long as the requirements are at least as effective as federal Occupational Safety and Health Administration’s rules.

Virginia enacted an emergency temporary rule July 27 and the Oregon Occupational Safety and Health Administration intends to have a temporary rule in place by Sept. 1.