The Two COVID Issues Cal/OSHA Should Get Right

By: Mark Webb

The month of October will be a quiet one – at least publicly – in the micro-ecosystem in which the draft of the COVID-19 prevention “non-emergency” regulation lives and breathes. The public hearing required by California’s Administrative Procedure Act (APA) was on September 15th. Comments from employers and labor fit neatly into expected siloes as we await the next meeting – in November – to see what the work product from the Cal/OSHA Standards Board will be when it heads to the Office of Administrative Law.


Of the many issues, pro and con, raised by stakeholders regarding the proposed regulation, two warrant particular scrutiny. The first is the duration of the new regulation – currently proposed for two years, while Cal/OSHA’s Division of Occupational Safety and Health works on a permanent infectious disease standard for general industry. The second is whether exclusion pay will be part of the non-emergency version. Both of these issues are somewhat complex, both in substance and in context of the requirements of the APA.


The proposed regulation cites Labor Code §§ 142.3, 144.6, and 6409.6 as “reference.” Reference is one of the six regulatory requirements of the APA and means “the statute, court decision, or other provision of law which the agency implements, interprets, or makes specific by adopting, amending, or repealing a regulation.” [Government Code § 11349(e)] Specifically, Labor Code § 6409.6 addresses various reporting and notification requirements relating to COVID-19 exposures. It began as Assembly Bill 685 (Reyes) in 2020 and was extended and amended in Assembly Bill 654 (Reyes) in 2021. This year, it was extended again in Assembly Bill 2693 (Reyes) and signed by Governor Newsom on September 29th.


More to the point, the reporting requirement was extended only for one year. As also noted in the APA, “Except as provided in Section 11342.4, nothing in this chapter confers authority upon or augments the authority of any state agency to adopt, administer, or enforce any regulation. Each regulation adopted, to be effective, shall be within the scope of authority conferred and in accordance with standards prescribed by other provisions of law.” That would seem to require the Board to pare back the duration of the proposed regulation to be consistent with the statute it implements.


The second issue – adding exclusion pay – presents a somewhat different dilemma. The first question is one of authority, another of the APA pillars. It is a correct observation that neither the authority cited by the OSHSB, Labor Code §§ 142.3 and 144.6, nor the authority to adopt a standard given to the Board under Labor Code § 6401.7(e) relating to Injury and Illness Prevention Programs (IIPP) makes any reference to exclusion pay.


To be clear – to the degree that is possible – the rationale for exclusion pay is that workers should not have to worry about reporting a COVID-19 positive test or exposure and, in so doing, losing pay and, potentially, their jobs when required to stay away from work. San Francisco Superior Court agreed with that rationale in the case of National Retail Federation v. Department of Industrial Relations, a 2021 case denying an injunction against the COVID-19 Prevention Emergency Temporary Standard (ETS) and effectively ending any judicial challenges to the ETS. Labor argues that without exclusion pay, low-wage employees will be forced to go to work, even if infected, defeating the purpose of the regulation.


But a sound policy rationale is not an exception to the limitations on regulatory authority defined in the APA. The Legislature chose to extend the supplemental paid sick leave (SPSL) in Assembly Bill 152 only until the end of the year. While the exclusion pay and other employment-status maintenance requirements in the ETS are broader in scope than SPSL, the point is that a requirement for maintaining employee wages and benefits during a mandated removal from the workplace for public health purposes should be the subject of legislation, not regulation. Since this furthers a legitimate and important public purpose, it is also appropriate for the Legislature to provide a funding source to subsidize this mandate at least partially.


The Legislature did so by creating the California Small Business and Nonprofit COVID-19 Supplemental Paid Sick Leave Relief Grant Program in AB 152. The program ends, as does the SPSL, on December 31st of this year. If the Board adds exclusion pay to the proposed regulation, employers of all sizes to which the regulation applies will again be bearing the weight of the exclusion pay mandate.


There is a second problem with the issue of exclusion pay. If added to the regulation, the Board must provide a 15-day comment period. Once that expires, OAL has up to 30 working days in which to review the regulation. Given the calendar of events, that could be sometime in early 2023 and after the ETS has expired.


COVID-19 will be with us next year, both in the Legislature and before the Board. It would be preferable to make the right decisions in 2023 rather than ill-advised ones in 2022. Whether that happens, we will have to wait to see.


Mark Webb is Cal-OSHA Reporter’s Decisions Editor, and is a former Arizona insurance regulator, insurance industry chief compliance officer, and is an expert in corporate governance, risk and compliance. The opinions expressed herein may or may not be those of Cal-OSHA Reporter.