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California Worker Board Considers Revamping Covid Emergency Rule

Dec. 9, 2021, 8:33 PM

California workplace safety regulators are eyeing changes to the state’s Covid-19 worker protection emergency temporary standard, including provisions to make employers pay for testing for fully vaccinated workers and allowing more options for wearing masks.

The proposed revisions would retain the emergency standard’s overall requirements for employers to have Covid-19 infection prevention programs in place.

The state Occupational Safety and Health Standards Board is set to vote on revising the rule at its Dec. 16 meeting. Without the board’s approval, the temporary standard, enforced by the California Division of Occupational Safety and Health, would likely lapse on Jan. 14. If approved, the revised standard would be expected to stay in effect until April when it would be replaced by a permanent rule.

“We definitely support continuing worker protections into 2022,” said Stephen Knight, executive director of the labor-side advocacy group Worksafe Inc. in Oakland.

Employer groups have called for the board to allow the temporary standard to expire. Some want it replaced with a rule that requires employers’ Covid-19 precautions to be part of general injury and illness prevention programs businesses already are required to have and for the practices to be based on state health department recommendations.

The Dec. 16 meeting is set to include a discussion about the permanent rule, but no vote is scheduled.

Vaccinated Get Free Tests

Among the changes that will be voted on are revisions that require employers in many situations to treat fully vaccinated workers as they do unvaccinated workers.

Knight pointed out that the current rule was adopted in June before the delta variant was widespread. The changes for fully vaccinated workers are a recognition that they, too, can transmit the virus.

The revision would require employers to offer free testing to fully vaccinated workers if their workplace had an outbreak of three or more positive cases within two weeks. The current rule exempted fully vaccinated workers from the free testing offer.

Robert Moutrie, a policy advocate with the California Chamber of Commerce in Sacramento, said testing every fully vaccinated worker could be costly for employers. “We are particularly concerned about this because of the shortage of rapid tests,” Moutrie said.

And fully vaccinated workers who had close contact with an infected worker would need to be excluded from the worksite for up 14 days, unless they agreed to wear a face covering and stay at least six feet from co-workers. The current standard allows fully vaccinated workers after a close contact to remain at their jobs without taking additional precautions.

Andrew J. Sommer, an attorney with Conn Macial Carey LLP in San Francisco, said it’s difficult to ensure an employee stays at least six feet from co-workers.

“If fully vaccinated employees must be excluded as a result, the employer is on the hook for exclusion pay during that period,” Sommer said.

Moutrie said sending fully vaccinated workers home could leave employers short-handed.

Mitch Steiger, a legislative advocate with the union-backed California Labor Federation in Sacramento, said his group’s primary concern is that guarantees employers will pay workers for time away from jobs continue to be part of the standard.

“Workers who aren’t paid may have no option but to go to work sick,” Steiger said.

Gaiters Acceptable

The definition of face covering is expanded to include gaiters if they have two layers of fabric or the fabric is folded to create two layers

The face covering proposal would add the requirement for fabric to not let light pass through. But the proposed change doesn’t address the intensity of the light, said Karen Tynan, a shareholder with Ogletree Deakins P.C. in Sacramento.

“It is unclear how this vague term will be interpreted,” Tynan said.

The proposed updates don’t include vaccination or weekly testing mandates similar to the federal Occupational Safety and Health Administration requirements.

The California standards board had scheduled a meeting Nov. 18 to adopt similar provisions, but after the U.S. Court of Appeals for the Fifth Circuit delayed implementation of the federal rule, the California board cancelled the meeting.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editor responsible for this story: Andrew Harris at aharris@bloomberglaw.com