California's OSHA Board OKs Emergency COVID-19 Rules

By Craig Clough
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Law360 (November 20, 2020, 9:45 PM EST) -- The six-member board overseeing California's Division of Occupational Safety and Health on Thursday unanimously approved a set of emergency COVID-19 safety regulations for most employers in the state.

The regulations, which could go into effect following a review by the state's Office of Administrative Law, would give teeth to the state's workplace enforcement measures that up until now have been issued through a series of guidelines from different agencies, according to an analysis of the regulations provided by Douglas L. Parker, chief of the Division of Occupational Safety and Health, known as Cal/OSHA.

"COVID-19 is an occupational health emergency causing more deaths in less time than any other workplace crisis in the nearly 50-year existence of Cal/OSHA," Parker said in the analysis. "The COVID-19 public health crisis is exactly the type of catastrophe that the legislature intended an emergency regulation to address."

If fully approved, the emergency regulations would be in effect for only 180 days unless the board were to adopt them as part of a regular rule-making action or extend them.

The regulations require employers to provide COVID-19 testing to all employees if there is a workplace outbreak, which is defined as three or more COVID-19 cases in an exposed workplace within a 14-day period.

Employers are also required to provide free masks and personal protective equipment to all workers, to identify a "competent employer representative to establish, implement, and maintain an effective written compliance action plan to protect employees" and to "share the plan with employees and employee representatives."

The regulations also require the plan to identify specific workplace hazards that may expose employees to COVID-19 and "adopt and implement feasible preventive measures to eliminate or minimize transmission risks."

In a change that will significantly affect the state's agricultural industry, where many seasonal workers are provided housing, the regulations require employers to space all beds at least six feet apart, and workers being transported must be spaced at least three feet apart.

Employers would also need to abide by standards for reporting when a worker has tested positive for COVID-19, and pay any employees needing to quarantine for 14 days. They would also need to keep workers six feet apart or build barriers between them if it is not possible.

The changes have been championed by labor advocacy groups the Labor & Employment Committee of the National Lawyers Guild and Worksafe. The groups first proposed the new regulations to Cal/OSHA in a May petition.

--Editing by Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.

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