California has joined a number of other states in holding off implementation of the Occupational Safety and Health Administration’s Emergency Temporary Standards in response to its many legal challenges. Whether or not California will implement the rule, which could soon require all employers of 100 or more workers to become vaccinated or undergo weekly testing, appears to hinge on the result of the court battles. So what impact does this have on California employers?
California is one of the 22 states with a State Plan, meaning that they are not directly regulated by the federal OSHA. This gives the state some leeway on regulations, including the ETS. Under this program, states may run their own safety and health program; however, it must be at least as effective as the federal OSHA requirements. This means that all of the safety and health requirements the state plan requires must receive approval, or the mandate permitting the State Plan can be rescinded, and the Federal OSHA will simply take control.
As a result, if the ETS does go into effect, Cal/OSHA, the state’s own safety and health department, will be required to adopt the ETS within 30 days or a regulation of their own that is as effective or more effective than the ETS. The California Occupational Safety and Health Standards Board had plans to meet on November 18th to decide whether or not to adopt the federal ETS or make possible changes to it. However, changes were not published, so it’s not clear what alterations were under consideration. Now, with the ETS blocked due to litigation, California has decided to delay voting on the ETS until more is known about the litigation and any possible appeals. As of now, the legal challenges are being decided in the Sixth Circuit Court of Appeals; however, many assume the final decision on the fate of the ETS will be decided in the U.S. Supreme Court.
Until California does decide to adopt the federal ETS with or without changes, employers need to follow the Cal/OSHA COVID-19 Prevention ETS, which is still in effect and will remain in effect until January 14, 2022, unless changes are made. Additionally, employers should prepare to comply with the federal ETS or a similar rule that could be adopted by Cal/OSHA. To prepare for these potential rules, employers may want to check the vaccination status of their workers and prepare a plan for weekly testing of workers who are not vaccinated along with a plan for tracking the results.