Flash Report: Emergency Regs Do Not Meet Basic Standards

By: Commentary by J Dale Debber

The proposed regulations being rushed through the California Occupational Safety and Health Standards Board (Board) raise numerous issues regarding consistency with legislation enacted earlier this year. Specifically, regarding mandatory notices required when there is exposure at a worksite – Labor Code § 6409.6 – as codified in Assembly Bill 685 (Reyes).

The inconsistency extends to the reporting of cases for purposes of administering the rebuttable presumption of compensability in Labor Code § 3212.88 as set forth in Senate Bill 1159 (Hill). For example, differences between an employee who is a “COVID-19 case” in the regulation and a “Qualifying individual” under AB 685 are likely to make any enforcement questionable at best. The notices of potential exposure also are not consistent.

Actions taken by Cal/OSHA to promulgate an emergency COVID regulation calls into question whether there is, in fact, an “emergency” as defined in the Administrative Procedures Act (APA).

Even assuming a further emergency safety standard is necessary, there is no evidence to suggest that current laws and regulations are insufficient to address immediate workplace safety issues. A regular rule-making process would allow for better coordination and contemplation with laws already on the books and with laws becoming effective January 1, 2021.

IIPP Statute Does Not Permit Safety Requirements

The various obligations placed on employers regarding returning workers to employment, under the banner of an effective Injury and Illness Prevention Program (IIPP), are substantive issues not authorized to be dealt with under Labor Code § 6401.7 – the IIPP authorizing statute.

One might think the pending release of multiple vaccines makes the whole issue unnecessary and, therefore, moot. But it is not moot because Worksafe is using the Board to accomplish through changes in required provisions of an IIPP standard safety requirements more appropriately made in specific occupational safety and health standards.

The Board appears to seek regulatory authority to do what the Governor has elected not to do (by vetoing AB 3216). Furthermore, employment-related issues are addressed under different laws and are not appropriately the subject of an IIPP.

Concerning Privacy Issues

The confidentiality requirements under the proposed regulations raise questions regarding compliance with the general obligations under the Labor Code for workers’ compensation claims administration, as well as the specific reporting requirements under Labor Code § 3212.88 (SB 1159).

Personal information collected on “residents” as that term is used in the provisions regarding employer-provided housing raise issues regarding compliance with the California Consumer Privacy Act (CCPA) and whether its provisions must be complied with when obtaining personal information of non-employee individuals.

Should the Standards Board choose to pass this regulation as presented, there remains a question about whether or not an objective Office of Administrative Law would approve it.