Inside OSHA


Employers, Labor Raise Competing Objections To Cal/OSHA COVID-19 Rule

September 13, 2022

Employers’ attorneys and labor groups are offer contrasting legal and other strong objections to California OSHA’s (Cal/OSHA) proposed long-term worker safety standards for COVID-19, setting up an imminent debate for the agency’s standards board on what changes -- if any -- to adopt in a final rule.

While labor organizations are escalating their opposition to the removal of exclusion pay requirements, along with specific safety measures designed to prevent spread of the coronavirus, a coalition of employers is charging in part that the proposal’s deference to other state agencies’ guidance is illegal and that existing general illness-prevention standards are superior to any permanent prescriptive rule.

“This type of prescriptive rulemaking cannot keep up with changes in medical science and new methods to manage transmission of COVID-19,” reads a Sept. 12 comment letter to Cal/OSHA’s standards board from attorneys with the employer-focused firm Conn Maciel Carey.

“As we have seen repeatedly with the [emergency temporary standard (ETS)], core elements of the rule have become obsolete over time as scientific knowledge has evolved concerning the transmission of the virus and the measures that are effective to prevent its spread, which has only become more pronounced with the emergence of variants (most recently, the BA.5 subvariant of Omicron),” they add.

Meanwhile, unions wrote in their Sept. 13 comments that they are “stunned” at the board’s proposal to eliminate mandatory exclusion pay -- a key element of the state’s prior, temporary COVID-19 standards that requires employers to continue paying workers who have been removed from their duties because of confirmed or suspected infections.

The labor coalition writes that “the plan to delete exclusion pay -- while requiring employers to exclude COVID-19 cases [from work] -- would spike case numbers and fatalities during what remains a very deadly stage of the pandemic. We are, frankly, stunned that this idea is under serious consideration and strongly urge Cal/OSHA and the [standards board] to return exclusion pay to the standard.”

Similarly, a source with the worker-safety organization WorkSafe says that group intends to argue in its own forthcoming comments that “removal of exclusion pay as a key element of workplace safety during the continued workplace spread of this transmissible disease” is unacceptable.

“Public health data is clear: The burden of this pandemic has fallen and will continue to fall most heavily on California's essential workers, and the removal of exclusion pay will only worsen this harsh reality,” the source says.

Stakeholders are commenting on Cal/OSHA’s proposed long-term COVID-19 standard, which the agency floated in June. The pending rule will replace temporary pandemic rules that have been in place since the early days of the pandemic, and is slated to remain in effect for about two years -- from 2023 through 2024.

Cal/OSHA’s standards board is scheduled to discuss the final rule at a Sept. 15 meeting.

But portions of the proposal have already attracted substantial pushback from all sides, including unions’ repeated arguments against deleting the ETS’ exclusion pay mandate.

Exclusion Pay

The unions’ new comment letter argues that dropping the requirement for exclusion pay will spread the virus because sick people will choose to work instead of potentially losing income.

“The end result of this deeply concerning proposal would be to force workers without adequate sick leave to lose their jobs or go home without pay for days or weeks,” the letter says. “As most cannot absorb such a devastating loss of income, many would have to avoid this outcome by avoiding testing, and thus, contagious workers would have to quietly stay on the job, infecting other employees and members of the public. Workers would fall ill, others would die, and the pandemic would worsen.”

Further, “this change would create a deeply concerning precedent that workers can be sent home, without pay, as punishment for contracting a work-related illness through no fault of their own,” the groups add.

“Workers’ compensation temporary disability benefits will not apply in most cases and, even if applicable, typically take too long to be of much help to COVID-infected workers. Exclusion pay has been a lifeline to so many; this proposal cuts workers off on January 1st and will absolutely worsen a likely winter surge.”

Safety groups are also targeting other elements of the proposal as too lenient. The WorkSafe source argues that the current proposal “implicitly relies on vaccination as a key control measure,” alongside “reactive measures” such as case identification, close-contact identification, and exclusion from the workplace.

By contrast, the “broader set of control options to reduce close contacts such as physical distance, moving work outdoors, changing work schedules, or even reference to categories of controls” included in the current ETS “have disappeared” from the pending proposal, the source says.

“Employers should be expected to continue such precautions, and mentioning them in the main provisions of the standard is important both to increase understanding of this expectation and to enable enforcement.”

Employers’ Concerns

Meanwhile, the employer coalition, represented by Conn Maciel Carey attorneys Andrew Sommer and Eric Conn, argues in its comment letter that Cal/OSHA is following the ETS too closely and would be wise to follow the lead of the Centers for Disease Control and Prevention (CDC), which has “recommended prioritizing preventing severe illness.”

For example, CDC “has emphasized the importance of vaccination and other preventive measures, including antiviral treatments and ventilation.” Cal/OSHA’s proposed permanent rule “is out of step with the CDC and its recognition that COVID-19 conditions have evolved such that the old rules no longer apply,” the employers say.

Moreover, Cal/OSHA’s existing Injury and Illness Prevention Program (IIPP) standard “remains a more effective tool for addressing COVID-19 hazards in the workplace than a permanent prescriptive rule that cannot be revised,” the lawyers maintain.

They argue that throughout the pandemic, “COVID-19-related citations have been regularly issued under the IIPP and the Aerosol Transmittable Diseases Standards, and those standards obviously will remain in effect after the ETS expires.”

The lawyers are also claiming that provisions of the proposal that explicitly defer to guidance published by the California Department of Public Health (CDPH) and Division of Occupational Safety and Health overstep Cal/OSHA’s statutory powers.

“The Standards Board lacks authority to do this in rulemaking, as general agency guidance cannot be relied upon in rulemaking and attempts to do so represent underground regulations,” they argue, citing a 1999 decision where Cal/OSHA’s appeals board ruled that a Division guidance document is not legally binding, based on a prior state Supreme Court decision.

“Accordingly, we urge the removal of each of the references in the Proposed Permanent Rule to CDPH or Division guidance -- including those that would mandate employers to review or consider the guidance, which are a thinly veiled requirement for employers to adopt that guidance,” they write.

‘Close Contact’

The employer attorneys also expand on previous objections to how the proposed rule defines key terms such as “close contact,” and how those definitions will be implemented.

“The Rule defines ‘close contact’ to mean ‘sharing the same indoor airspace’ as a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period . . . regardless of the use of face coverings,” they write.

“This close contact definition -- which is currently in effect under the ETS based on CDPH’s June 8, 2022 public health order -- is ambiguous and largely unworkable, and thus should not be incorporated into the rulemaking as a permanent definition.”

But they support Cal/OSHA’s plan to drop exclusion pay requirements from the standard, citing new state laws requiring sick leave pay where COVID-19 is a factor.

“We support the Division’s removal of the exclusion pay provision, in light of the California legislature having already addressed exclusion pay under the 2020, 2021, and 2022 COVID-19 Supplemental Paid Sick Leave laws,” the letter reads.

“It is unprecedented for Cal/OSHA to impose far-reaching wage mandates like those included in the ETS. Such employer pay requirements fall squarely within the province of the California legislature, especially given its interest in this subject from past legislation.”

However, worker-safety advocates have argued that the supplemental paid sick leave laws have only limited impacts, and leave many employees unprotected. -- Curt Barry (