COVID-19: CAL/OSHA Backtracks On Its Revised ETS Rulemaking – The Old ETS Is Back (For Now)!

As a follow-up to our last legal update regarding the new Cal/OSHA Emergency Temporary Standards (“ETS”) pending approval, it appears those standards have been withdrawn even before they were approved.

Governor Newsom purportedly “nudged” Cal/OSHA’s Board of Supervisors (“Board”) into withdrawing the revised Emergency Temporary Standards (“revised ETS”) that it just voted to implement on June 3, 2021. This occurred behind the scenes and in a special meeting held yesterday, June 9, 2021. At the meeting, the Board “… voted unanimously to withdraw the revisions approved on June 3 that are currently at OAL for review but have not yet become effective.” (The OAL is the Office of Administrative Law.) The Department of Industrial Relations (“DIR”) News Release can be found here.

This means that California employers must continue to follow the COVID-19 safety rules contained in the original ETS (the version approved by Cal/OSHA in November 2020), which remains in full force and effect. According to the DIR, “The Board could consider new revisions at a future meeting, perhaps as early as the regular meeting on June 17. In the meantime, the protections adopted in November of 2020 will remain in effect.” Employers can view the Cal/OSHA COVID-19 ETS FAQs here.

We are hearing intense frustration from our clients and businesses across the state about the tug-of-war between the State and Cal/OSHA, and the general lack of direction on what will happen on June 15, 2021, or thereafter. This frustration is completely understandable. Although we cannot predict what might happen in the future, we currently anticipate two distinct possibilities:

• June 15, 2021, will arrive without any Executive Order changes from the Governor. If that happens, the original ETS will remain in full force and effect until such time as Cal/OSHA can prepare, propose for public comment, and implement a new version of the ETS. The soonest this can happen is the end of June 2021, because the Board next meets on June 17, 2021. From there, even if a new revised ETS rule- making package has been issued for public comment and can be passed at that meeting, the OAL would then have up to 10 calendar days to approve the ETS rule- making submission; OR
• Governor Newsom could issue an Executive Order that would supersede some or all of the original ETS rules to better align the Cal/OSHA standards with the California and federal CDC guidance. Recall that he took similar action in December 2020 regarding quarantine timelines under the ETS.

Regardless, all of this is pure speculation at this point. The only certainty is that for now, employers must continue to follow the currently-approved (original) version of the
ETS. This is true despite more permissive guidance or advisories issued by the State or CDC because, to date, the State has been clear that employers remain, “…subject to the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (“ETS”), if applicable to them.”

Lastly, to answer the question most commonly asked of our attorneys, “Do my employees still have to wear a mask at work, even if they are vaccinated?” The answer is yes. At least for now masks are still required in the workplace, regardless of the vaccination status of employees.

Update courtesy of JorgensenHR and LightGabler.