Cal-OSHA keeps COVID rules in place

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Ag community pushes for elimination of COVID Emergency Temporary Standard

By Vicky Boyd

Despite pleas from business groups to scrap the COVID-19 Emergency Temporary Standard, the California Occupational Safety and Health Standards Board tabled proposed changes for a few weeks.

The board plans to consider a revised proposal, which it said will take into account up-to-date science and vaccination and positivity rate data, at a special June 3 public meeting.

The San Joaquin Farm Bureau had been advocating for eliminating the standards altogether, and SJFB Executive Director Bruce Blodgett said he doesn’t hold out hope.

“There probably won’t be a lot in terms of improvements, given their past history,” he said. “It’s still outdated and still just as ridiculous. Most of this is already covered in our injury and accident prevention programs that are long-standing and effective.”

Bryan Little, California Farm Bureau director of labor affairs, also favored scrapping the outdated emergency standard, referred to as an ETS.

“We need to go back to the drawing board,” he said. The lengthy regulatory process, such as surrounded the standard, results in rules that are obsolete the day they’re finalized. Approved on Nov. 20, 2020, the COVID emergency standard doesn’t even mention vaccinations, which have become a common pandemic control measure, he said.

To mask or not to mask?

The ETS is designed to provide guidance to employers on a multitude of COVID-related workplace issues, including masking, social distancing, COVID testing, quarantines and touch point disinfection. The board enacted the emergency rule in November 2020, and it’s set to expire Oct. 2 if no action is taken.

At its regular May 20 meeting, the board was set to adopt an amended standard that included, among other items, requiring employers to provide N95 masks to unvaccinated workers and to test them weekly. Workers who had received vaccines could to go without masks and not practice social distancing. The amendments were based in part on stakeholder input in February.

But at the 11th hour, California Occupational Health and Safety Administration staff recommended the board delay action on the amendments to give time to update them.

Several speakers during nearly three hours of virtual testimony urged the board to develop new amendments that align with the Centers for Disease Control’s May 13 COVID updates as well as the governor’s plans to fully reopen the state June 15. The California Department of Public Health also is expected to release new guidelines June 15 that mirror those of the CDC.

One of the most contentious parts of the proposal was the N95 face mask requirement. The amendment applied to both indoor and outdoor environments. Nowhere in the document did it discuss employee mask fit testing, nor did it address the lack of fit for workers with facial hair.

Several speakers, including Little, pointed out how N95 masks were in short supply last spring at the convergence of the pandemic and the wildfire season. And they envisioned similar supply shortages this summer should the board move forward with the amendments.

Instead, they recommended N95 masks be kept for those who truly need them, such as first-responders, healthcare workers, pesticide applicators and employees working outdoors during wildfires.

SJFB Second Vice President Jake Samuel, who grows cherries and walnuts with his family near Linden, said it would be difficult having some workers unmasked while others were masked.

“Have you ever worn an N95 at 90 degrees? It’s not pleasant. Along with that, it’s not just the cost but the availability of N95s,” he said.

Several speakers also pointed out that the amended standard would create different policies for vaccinated and unvaccinated employees – something that hasn’t been done before. As a result, it could open up the workplace to discrimination and harassment issues. In addition, the standards don’t outline how an employer would document employee vaccination while still maintaining worker privacy.

Samuel said he talks to his workers about the benefits of vaccines and will help them obtain them if they so desire. But he doesn’t want to force anyone to get vaccinated if they don’t want to.

“I want them to make their own decision,” Samuel said. “I don’t feel it’s right for any employer to require vaccination and to ask them if they are is an invasion of their privacy and HIPAA (Health Insurance Portability and Accountability Act) laws.”

Not everyone agreed the standard or the amendments should be dropped. A few speakers said they believed the new CDC guidance was premature and that it was based on popular science, not real science.

“The CDC rules were intended for the general population and not the workforce,” said Maggie Robbins, occupational and environmental health specialist for Oakland-based WorkSafe. “It creates open season in the work place, and most controls will be relaxed.”