In a first for this publication, Providence Publications has filed comments with the state Office of Administrative Law. Cal-OSHA Reporter is recommending that OAL reject the recently adopted emergency regulation on COVID protections. Publisher J Dale Debber decided to file in support of the business community. “The business community is attacked time after time by special interests who have only their own interests at heart. It is time for the business community to either take a stand or become irrelevant to the process,” Debber says.
The comments challenge the emergency and necessity of the standard, General Industry Safety Orders §3205, the Standards Board’s authority, and the regulation’s clarity and consistency.
“We have never provided written commentary before this on any proposals, preferring to remain objective news media, and the [occupational safety and health] community’s paper,” Debber said in the filing. “In this case, there is so much overreach, so much that was ill-considered, and even more that was not considered, that I could no longer sit still for it.”
The filed comments explicitly challenge the board’s authority in that the Board cites California Labor Code §142.3 as its authority to make amendments to the Injury and Illness Prevention Program. “It is Labor Code §6407.1 which sets for the obligations of an employer to develop and implement” an IIPP, the filing argues. “There is no authority to use the IIPP as a vehicle to bypass either the Legislature or the [normal] rule-making process for occupational safety standards.”
It is appropriate, Cal-OSHA Reporter’s filing says, to question why, more than nine months after the governor’s state-of-emergency declaration, the board is only now attempting to issue a COVID-19 standard. “Cal/OSHA’s own enforcement record demonstrates that emergency regulations are not appropriate to address the issues the Board seeks to address,” it states, citing recent citations against employers for lack of COVID protection. “We must ask why these, and other enforcement actions, are not referenced in the Board’s Finding of Emergency.
The Board “not only demonstrates the lack of an emergency – within the context of the APA – but also fails to demonstrate that these regulations are even necessary.”
The letter also points out that the emergency regulation addresses issues outside the scope of its statutory authority, such as requiring personal identifying and medical information and conflicts with recently passed legislation.
The letter also notes that the inconsistent terminology used in the regulation relative to the same issues raised in AB 685 and SB 1159 “raise an issue of whether the proposed regulations lack the consistency and clarity as defined in the Government Code.”
“The point is that the rush to do something, anything must not be allowed to create an environment where what already is being done is considered of no value.”
A copy of Cal-OSHA Reporter’s filing in opposition to the standard can be found here.