Cal/OSHA COVID-19 Prevention Emergency Regulations

UPDATE: Comments to the Office of Administrative Law

Wine Institute’s COVID-19 Update last week reported that the California Occupational Safety and Health Standards Board (OSHSB or Cal/OSHA Standards Board) had adopted COVID-19 Prevention Emergency Regulations. These emergency regulations, if approved by the Office of Administrative Law (OAL), will create additional obligations and liabilities for all California employers.

The Cal/OSHA Board met on Nov. 19, approved the COVID-19 Prevention Emergency Regulations, and sent the regulatory package to OAL. The regulatory package was noticed with OAL on Nov. 20, starting the clock on the five-day OAL comment period. Wine Institute actively participated in developing comments submitted today by a coalition of agriculture associations and a separate Cal Chamber coalition.

Wine Institute’s Legal Department engaged occupational health and safety legal experts from Keller Heckman LLP law firm to assist in drafting arguments for the agriculture coalition including the California Association of Winegrape Growers (CAWG).

Many key points of Wine Institute’s opposition were also included in the letter submitted by Cal Chamber which took a narrower focus, touching upon broad business objections.

OAL has until Monday, Nov. 30, to decide whether to approve the emergency regulations or send them back to the Cal/OSHA Standards Board for further action. If approved, the regulations will go into effect immediately upon filing with the Secretary of State.

Wine Institute will continue to update members on the progress of these emergency regulations and is planning to provide compliance guidance and host a webinar if the regulations are approved.

Provisions in the regulations of most concern:

• Expanded Quarantine, Pay, and Benefits Provisions: The Regulations provide that all employees who are excluded from the work place, either on the basis of being a “COVID-19 case” or as being exposed to a “COVID-19 case,” are to have their earnings, seniority, and all other employee rights and benefits maintained. It is important to note that a single employee can be exposed to a “COVID-19 case” on multiple occasions.
• Expanded Employer-Obligated COVID-19 Testing: Under certain circumstances, employers will be required to provide COVID-19 testing to employees during work hours, even if the COVID-19 cases are not work related. The regulations present no guarantee that employers can obtain an adequate number of tests, or secure sufficient testing capacity.
• Investigation of COVID-19 Cases: The regulations require employers to investigate and respond to all COVID-19 cases, even if the exposure is not work related. In effect, this would impose medical public health forensic duties on employers which more appropriately belong with medical and public health officials. Furthermore, there are several privacy restrictions prohibiting an employer from conducting effective contact tracing.
• Notification to Potentially Exposed Individuals: The regulations require employers to identify and notify all individuals in the workplace who may have had COVID-19 exposure, including all locations in the workplace that the “COVID-19 case” may have visited during the high exposure period. These requirements are inconsistent with the provisions of AB 685 (Reyes, 2020), which goes into effect on Jan. 1, 2021. This will undoubtably cause confusion and make compliance difficult.
• Employer-Provided Housing and Transportation: The regulations require employers to implement strict restrictions over employer-provided housing and transportation, even in situations where the employer may not have control or the authority to enact such restrictions.

Review the regulatory text.