The board had planned to adopt the requirement at its meeting Thursday. Because California has its own occupational safety and health department, it could have had its own mandate regardless of the court's ruling, as long as it was as strict as or stricter than the federal regulation.
However, the board decided to wait to see how the legal battle over the proposed federal mandate plays out. The Fifth Circuit Court of Appeals on Nov. 12 stayed the federal mandate, with some experts predicting it will ultimately be reviewed by the U.S. Supreme Court.
"Federal OSHA has stated that it will not require states that administer their own workplace safety and health programs, like California, to submit their notices of intent (to adopt the federal (standard)) while the stay is in effect," the state Department of Industrial Relations, a parent agency to Cal-OSHA, said in a statement. "Cal/ OSHA and the Occupational Safety & Health Standards Board will follow this guidance from the U.S. Department of Labor and will take no further steps to implement the Federal (standard)."
The proposed mandate would have meant that the workers who work for companies with 100 or more employees would have to be fully vaccinated or subject to face covering and at least weekly testing.
California's COVID Workplace Rule
The board is set to update the rule at its December meeting.
Proposed revisions include offering free testing to exposed workers even if they are fully vaccinated and don't have symptoms. Fully vaccinated asymptomatic workers exposed to the coronavirus must also wear face coverings at their workplace for 14 days and get a COVID test three to five days after their last exposure.
The board can then finalize the rule early next year, creating a "permanent" regulation that would last two years.
Those representing business groups have called for the board to not create a permanent COVID workplace rule, instead asking that it simply enforce guidance issued by the California Department of Public Health. Some referred back to Cal-OSHA meetings in June, when it had a series of marathon meetings to figure out whether vaccinated Californians needed to wear masks at their workplaces.
"We urge the Board to consider and acknowledge the difficulties it has encountered, despite its diligence and best efforts, in attempting to address the COVID-19 pandemic through an (emergency temporary standard) that has proven to be captive to a rule-making process that is far too rigid and lengthy to be current and effective," Western Steel Council Executive Director Greg McClelland wrote to the Cal-OSHA board.
Worker advocacy groups called for creating an even stronger COVID workplace rule, such as defining outbreaks as having three or more cases within a site. The current rule defines outbreaks as three or more cases among workers.
"By leaving out positive non-employee cases, this language significantly limits the protection for workers," said AnaStacia Nicol Wright, a staff attorney at Worksafe.
Mitch Steiger, a legislative advocate for the California Labor Federation, asked the board to keep a provision that specifies companies must continue to pay and keep workers who self-quarantine due to their exposure to COVID-19.
Not having such a provision is "going to encourage workers not to report symptoms, hoping it's a flu and leading them to go to work sick," he told the board.
The board's next meeting is scheduled for Dec. 16 at 10 a.m.
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