The Department of Industrial Relations (“DIR”) recently published an initial draft[1] of a regulation that, if adopted by the Occupational Safety and Health Standards Board (“OSHSB” or “Board”), would replace the Cal/OSHA COVID-19 Emergency Temporary Standard[2] (“ETS”) which will expire on January 1, 2023. If approved, the new regulation will govern workplace responses to COVID-19 moving forward.
The OSHSB has not yet started the rulemaking process under the Administrative Procedures Act, which requires that the Board undertake a number of steps as outlined below before it takes final action to adopt the regulation.
- The OSHSB will issue notice of the proposed rulemaking for the permanent Cal/OSHA COVID-19 Regulation. The OSHSB must provide notice at least 45 days before the public hearing on the regulation and the close of the public comment period.[3]
- After hearing public comment and holding the hearing, the OSHSB may take action on the draft regulation and submit it to the Office of Administrative Law (“OAL”) for review.
- Upon receipt of the regulation, the OAL will have 30 days to either approve or reject the regulation.[4]
- If the OAL approves the regulation, the OSHSB will file the regulation with the Office of the Secretary of State. After the regulation becomes effective, the Office of the Secretary of State will codify the regulation in the California Code of Regulations after which the regulation will become effective.
LCW attorneys are monitoring regulatory developments concerning the rulemaking process and will provide further updates as necessary.
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[1] The draft regulation is viewable here: https://www.dir.ca.gov/dosh/doshreg/COVID-19-Prevention-Regulatory-Text.pdf.
[2] 8 C.C.R. § 3205, et seq.
[3] Gov. Code § 11346.4, subd. (a).
[4] Gov. Code § 11349.3, subd. (a).
