Episode 94: Emergency COVID-19 Rules Coming Soon

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's executive vice president and general counsel. And back on the podcast today is Robert Moutrie. Rob, as many of you know or have heard about, is one of Cal chambers policy advocates who specializes in legislation that also involves Cal osha. And here we are again, Rob, to talk about Cal osha. Welcome to the workplace again, Rob, how are you?

I'm great. I'm great. I'm glad to be here. It's always nice to talk to you and I am. I'm certainly staying busy. CALOSHA is staying active.

Yeah. And of course, it should be no surprise to our listeners that the focal point with CALOSHA right now is of course, COVID 19 ensuring that the workplace stays safe. Rob, we had you on the podcast a while ago to talk about 8685, which of course is also a Covid CALOSHA type piece of light. But today we're now back to talk about some emergency regulations that CALOSHA staff is working on, which of course is regarding COVID 19 yes.

So Cal OSHA has took a very important vote last month at their meeting in September to require the division staff to prepare an emergency regulation for a vote by the Standards Board in November. And this is remarkable for a couple of reasons. First, it's a very short timeline. Most emergency regulations are not in front of the Standards Board less than two months after they began drafting. And the second issue that's very significant here is, of course, it's an important topic, COVID 19 and it's got a very broad reach. This standard is going to affect all workplaces that are not under the aerosol transmissible diseases standard, which is if you don't know what that means, this covers you is the easy answer.

But the really troubling part that businesses should be aware of is that there is going to be virtually no time where the text of this regulation is public where we can comment. The Standards Board specifically in their September decision on the petition. This petition583, for those of you who wanted to research the documents, said that there would be no advisory committee prior to the vote in November and subsequently an advisory committee would be convened. Advisory committee is normally how employers, labor, you know, all stakeholders speak with staff and say, hey, here's your draft text. Hey, here are concerns. You know, this language is slightly incorrect. This is policy mistake. You know, this part we should twist this way. And everybody normally meets and exchanges language. And then that gives staff some input from the stakeholders who are going to be subject to the regulation. For those of you who were around last year, for example, under the Wildfire smoke emergency regulation that were still under presently there, the advisory committee met something like five times, I believe, over the course of a couple of months. And Cal Chamber and others submitted numerous comment letters really dealing with the text in detail. And many of the things that we suggested, though certainly not all made changes in the final emergency regulation which the board adopted here for this COVID 19 regulation, there is going to be no advisory committee or stakeholder input prior to. Well, almost no. And I'll get to the little bit we'll have in a sec. Almost none prior to the Standards Awards vote in November. I say almost none because emergency regulations have to be published five days before the Standards Awards vote. So it will be published five days before the meeting in November. But the problem with that is that in five days, as you understand, staff isn't going to rewrite this regulation massively. Right. Even if everybody got in their comment letters that first day, staff isn't going to have time to process them all, rewrite, and then give it to the Standards Board to vote. So very few if any changes will be made at that point. Which means whatever staff drafts now, which we cannot see is being drafted in that kind of black box is what the standard board is going to vote on. And as you know, Erica, and as anyone in the legislative process right now knows. Right. Any bill that has or any regulation that has COVID 19, the topic has a lot of momentum because everyone wants to address COVID 19, rightly so. But in this case, we have a huge concern over our inability to even see what's going to happen. And employers, particularly in California, should be concerned about this. Not in an abstract sense about, you know, we want input. Of course that's important. But in a practical sense, what that means is the window for compliance is going to be very short. If you take from the first day of publication, let's say five days before.

Before the Standards Board meets in November.

After they voted, and we presume they're going to approve it, initial comments by the Standard Board members indicate the vote will likely approve it. Even if not everyone votes yes. Even at that point, you may have as little as two weeks after the vote. So if you add that five days before the vote, two weeks after the vote, you're looking at potentially less than 20 days within the first text is public to be ready to comply. And that's a huge concern when we don't even know what the text is so we don't know how onerous it will be. So that's the big background here, Erica. Of course there's some substantive concerns here and there's also questions about the need for the regulation that I'm glad to get into. But I think that's the big package on why employers should be aware of this and should really be on their toes come November to and ready to get word quickly and react.

Okay. And I think that's a really important point. We don't have anything set in stone right now. We're in the month of October. This is looking on the horizon for November and it could happen very quickly.

Yes, yes. Those are the key issues here. Now, avid Calicha watchers will know that Cal OSHA has actually already been issuing citations to employers for COVID 19 safety with this regulation not in existence. They've been doing that under the guidance documents, which I'm sure that all businesses operating in California are probably aware of. These are documents that Cal OSHA has been drafting over the last eight months or so and apply to a range of industries with industry specific guidance. So Cal OSHA is already doing enforcement related to COVID 19 without this regulation. Now, Cal Chamber and others have, prior to the September vote, made this point to the board saying, listen, Kelos is already enforcing. You already have authority to do this. What is the rush to push out this regulation which we're not going to have any kind of stakeholder input on. We're not going to know what it says. What's the rush to kind of go through this so quickly when we already have enforcement capabilities that are happening and citations are being issued? And I wish I had a better answer for that, Erika, because it just seemed to be a matter of profound philosophical disagreement that the board seemed concerned to say, well, we want more and we want a standard. So anyway, it is coming, but employers certainly should already be in compliance. And hopefully this is hopefully, if we're lucky, much of the requirements in this upcoming emergency regulation will correspond closely to what's already required in the guidance documents and the guidance documents in the governor's playbook, which are generally quite close to another. Of course, as you know, employers also should be aware that their local entities may have guidance. Right. Counties may also have guidance. So there's just a lot of levels here. And this is going to be one more document employers have to watch to make sure they're in COVID 19 compliance.

Okay. That's very helpful to our employers and hopefully to our listeners as well, especially when we're talking about, hot off the press, further requirements that employers may need to meet before the end of the year. So, Robert, thank you so much for being on the podcast today and letting us all know about what what is potentially happening over at the Standards Board, over with Cal OSHA and what Cal Chamber is doing to protect all the businesses out there.

We're doing our best. That's all we can.

That's all we can do in this crazy year of ours. That's kind of my mantra. Do your best, be flexible and roll with it. Right?

Amen. All right.

And thank you all for joining us on the workplace. Keep up to date on important COVID 19 developments for employers. And don't forget to subscribe to Cal Chambers podc by visiting calchamber.com.