California Employers Face Everchanging Barrage of Information on OSHA COVID Rules

Here’s What You Need to Know

Compliance with OSHA COVID regulations has become extremely complicated, with almost daily changes to the requirements that California employers are subject to both under federal and state laws. Set forth below is a summary of the current status of the continually changing legal landscape on this subject and recommendations on how to proceed in the coming weeks to keep your workplace and employees safe and avoid significant OSHA penalties.

1. Federal OSHA or Cal/OSHA?

As a starting point, it is important to keep in mind that Cal/OSHA is separate and distinct from federal OSHA.  Although a majority of states are covered directly by federal OSHA on issues relating to workplace safety, California is one of 22 states with their own OSHA-approved occupational safety and health plan (also known as State Plans). Pursuant to this arrangement, federal OSHA and Cal OSHA have each issued their own COVID regulations for employees called Emergency Temporary Standards (ETS).  States like California (with State Plans) are required to either adopt the federal ETS verbatim or adopt a version that is “at least as effective as” the federal ETS. But that has not yet occurred in California as to the latest federal OSHA ETS, and it is not clear how the timeline will be affected by current litigation surrounding the federal OSHA ETS (see discussion below). Cal/OSHA’s Standards Board has not announced a special meeting to discuss the adoption of the federal ETS, although the Board’s next meeting is scheduled for January 20, 2022, at which time the federal ETS’ future in California may be decided unless an emergency meeting is scheduled before that. The OSHA State Plan states have been instructed to adopt the federal ETS (assuming it survives judicial review) or release their own ETS by January 24, 2022, to take effect within 30 days. Therefore, as of now, California employers are only legally obligated to follow the Cal/OSHA ETS, including the most recent revisions, which go into effect on January 14, 2022.

2. Status of Federal OSHA ETS

On November 4, 2021, eight weeks after President Biden’s mandatory Covid vaccine announcement for private employers, federal OSHA issued an ETS requiring all employers with at least 100 employees to ensure their workers are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing plus wearing of face masks. Employers can comply with the federal ETS by (1) requiring all employees be vaccinated unless the employee qualifies for a medical or religious exemption; or (2) providing employees with the choice of either showing proof of vaccination or participation in at least once weekly testing plus wearing of face masks.

Various legal challenges were filed to the federal ETS. The U.S. Court of Appeals for the Fifth Circuit issued a stay of the federal ETS, but that stay was later dissolved on December 17, 2021, by U.S. Court of Appeals for the Sixth Circuit, which was appointed to address the various legal challenges to the federal ETS. In response to the Sixth Circuit’s Order, OSHA reset the federal OSHA ETS deadlines to January 10, 2022, for most of the requirements, and to February 9, 2022, for testing to begin, to account for the time the federal ETS has stayed.

After the Sixth Circuit overturned the federal ETS stay, various emergency stay applications were filed with the U.S. Supreme Court. In an extraordinary action, the Supreme Court announced that it will hear oral arguments on the stay of the federal ETS at a January 7, 2022, special session.  

3. Status of Cal/OSHA ETS

The Cal/OSHA ETS was first adopted in November 2020, readopted with some changes in June 2021, and again readopted with more changes in December 2021.   The newest version of the Cal/OSHA ETS will go into effect on January 14, 2022, regardless of the litigation surrounding the federal ETS. These revisions cover the following topics: (a) investigating and responding to COVID-19 cases in the workplace; (b ) face coverings; (c) testing and exclusion of employees; (d) return to work criteria; and (e)  definitions of “Worksite”; “COVID-19 test”; “Face coverings”; and “Fully vaccinated.” Note that the substance of the federal ETS is quite different and in many ways contradictory to the Cal/OSHA ETS. For example, the Cal/OSHA ETS does not contain a mandatory vaccine or face mask plus weekly testing requirement, which is an integral part of the federal ETS.

4. Key Take Aways

Regardless of the federal ETS status, California employers must continue to comply with the Cal/OSHA ETS and be mindful of the changes that will take effect on January 14, 2022, with the caveat that employers may have to quickly shift to complying with the federal ETS probably sometime in February or March 2022, depending on what happens with the Supreme Court.

In addition to these OSHA requirements, California employers must follow the California Public Health Orders on COVID-19. On December 15, 2021, a state-wide universal indoor masking order went into effect for 30 days as an emergency measure to curtail the spread of the Omicron virus over the holidays. That means that between December 15, 2021, and January 15, 2022, employers in California must require universal indoor masking of employees, regardless of vaccination status.

Since the adoption of the Cal/OSHA ETS, Cal/OSHA has been very active in conducting COVID-19 inspections and investigations, issuing hundreds of citations, some of which come with six figure penalties. It is therefore vital that employers ensure full compliance with the existing Cal/OSHA ETS and be ready to implement the revisions that go into effect on January 14, 2022.

If you have any questions regarding this or any other employment law subject, please call  Arif Virji, Samantha Pungprakearti, or Justin Hein at Carle, Mackie, Power & Ross LLP at 707-526-4200.