As Cal/OSHA heads to a self-imposed November deadline to vote on an emergency rule for COVID compliance, employer groups are pressing the agency to release the draft standard publicly. Some representatives suggest that the ‘heavy hand of the left’ has allowed labor to have a chance to see draft language from Cal/OSHA’s Division of Occupational Safety and Health, while the employer side has not. The Division of Occupational Safety and Health tells Cal-OSHA Reporter that assertion is not true.
The emergency regulation is being drafted against a backdrop where a new law –– AB 685 –– enforcing COVID standards has been chaptered, a pandemic which could be over in a few months, treatments improve, and a vaccine is within sight. But then this is California.
The Standards Board directed DOSH to draft language the board could vote on at its November 19 meeting. By law, stakeholders must be given five days public notice of a proposed emergency standard (regular rulemaking gets a 45-day comment period). Board Executive Officer Christina Shupe says it is “very possible” that the board won’t be able to provide that in time for the November meeting, which would put the matter over until December.
The Division is “working day and night” on the proposal, says Deputy Chief for Health Eric Berg, adding that “there are other parties involved, so it’s not completely under our control.” He told the board he is “hopeful” that DOSH can get the language to the board in time for its November meeting.
As it is, the employer side thinks the November deadline is far too soon for so important and far-reaching a regulation, even if it is an emergency rule. Some tell the board that the accelerated rulemaking process should be scrapped for regular rulemaking, pointing to the “unintended consequences” from the wildfire smoke emergency rule.
Those consequences include unenforceability due to N95 masks’ unavailability for outdoor employees because of the pandemic emergency. That development was on no one’s radar while the wildfire rule was under consideration, but employer groups urged the board not to rush into another emergency regulation, with its own potential unintended consequences.
This time, they are pointing to the earlier discussions in stark contrast to the “dialogue” on COVID regulation between Cal/OSHA and employers, who will have to “comply with and operationalize the new rules,” says Phylmar Regulatory Roundtable’s Elizabeth Treanor. “I have testified before this board since 1989 and in my years of experience, this lack of transparency is unexpected and without justification.”
She adds, “it appears that the board has transferred its authority to the Division and that the board is likely to adopt any regulation placed before it.” Phlymar has submitted an alternative proposal on a performance-based COVID regulation, as opposed to the petitioner language, which is more prescriptive. The petitioners say their language is merely a “model” that Cal/OSHA could consider.
Release the Draft
Treanor and other employer reps want the board to ask DOSH to release a draft of the emergency standard as soon as possible. As much criticism as employers leveled against Cal/OSHA for its wildfire smoke process, they note that even in that process, “stakeholders were actively involved,” Treanor says.
Bruce Wick, risk management director for California Professional Association of Specialty Contractors, comments, “I can’t figure out if I’m frustrated or sad by where we are.” Safety managers must translate regulations into jobsite safety so that employees understand what is required and how to comply. “We need good regulations for that,” he says.
Construction has been working on COVID safety measures since March, he says and has done a good job of protecting employees, as evidenced by data from the Workers’ Compensation Insurance Ratings Bureau. “If a regulation passes and it doesn’t fit closely to what people are already doing, then our site safety coordinators and supervisors have to go to the job site and say, ‘We have to change the rules.’ The reaction is not good.”
Wick maintains that Cal/OSHA should be concentrating on industries that aren’t doing a good job instead of upending sectors that have worked hard to keep their workforces healthy.
Sarah Wiltfong, policy manager for the Los Angeles County Business Federation, called Cal/OSHA’s regulatory schedule “an exceptionally quick timeline to draft something of this magnitude [considering the] clear lack of stakeholder input.”
Bryan Little, director of labor affairs for the California Farm Bureau Federation, said the pitfalls of the wildfire smoke emergency regulation is “an illustration of why a regulation that will be as far-reaching as COVID-19 standards should be undertaken in a normal regulatory process.”
Michael Miiller, director of regulatory affairs for the California Association of Winegrape Growers, suggested the board is ignoring employer concerns and that adopting the emergency regulation “would be a direct violation of the [California] Administrative Procedures Act.” He adds, “Why are we even holding these meetings if you allow us some public comments just to check the box? The public deserves to be part of the conversation and drafting this regulation.”
But Maggie Robbins, representing the petitioners, said the calls for a simple performance standard are a bit contradictory.
Former DOSH Chief Len Welsh has referred to the outdoor heat illness prevention standard as an example of just such a standard. “What made the outdoor heat standard so effective is it pointed directly to the specific types of controls that need to be in place – shade, water, rest – not simply saying you need a heat control plan, or you need a plan to react,” Robbins says. “Simplicity is very important in any rule,” she says, but also specific mitigations to address the hazard in question.
Cassie Hilaski, safety director for Nibbi Brothers Construction, notes that a collaborative approach leads to better safety solutions even at the company level. “I may start with an idea that I think is great, then I share it with my team, and they lay out the downfalls that I haven’t thought of.” The team then modifies the idea and takes it to the operations department and supervisors and project managers. They point out potential unintended consequences. “We massage it some more so that finally what our workers get is an upgrade in safety.”
And massaging is what stakeholders would like to do in this case if they could just see what Cal/OSHA has in mind.
Click here to see the Phylmar alternative proposal on the emergency COVID regulation.