Farmers and other employers face a new N95 respirator mandate, even though Cal/OSHA is easing COVID-19 emergency safety standards for workplaces.
Next Tuesday, businesses have the option of eliminating physical distancing and partitions and barriers for employees working indoors and at outdoor events with more than 10,000 people as long as N95s are made available to all unvaccinated employees. After July 31, physical distancing requirements go away, but employers must continue to offer the N95 masks to unvaccinated workers.
Cal/OSHA's governing board approved the N95 requirement in a meeting last Thursday where the panel first rejected a proposal to ease COVID-19 emergency safety standards for workplaces, then flipped that decision an hour later.
The following morning, Gov. Gavin Newsom said he would not rescind California’s state of emergency as part of the June 15 reopening. Newsom was also reluctant to speed up the pace for aligning Cal/OSHA with federal masking and social distancing guidelines, which agency staff don't expect to happen until at least August under the current process.
Newsom said he was pleased to see progress in the board dropping some requirements for physical distancing and partitions, but hestressed that the state will be moving away from mandates and toward incentives and resource support. He suggested that there will be more changes after June 15.
“A lot of employers are not in the position to afford N95 masks,” said Newsom. “We're looking to augment that.”
Newsom’s cautious approach drew immediate criticism from Republican lawmakers, who have long argued the governor overstepped his authority in issuing dozens of executive orders that have affected more than 400 laws.
“If Newsom believes the state is safe enough to reopen, then it’s safe for people to be able to make decisions for themselves without his arbitrary and capricious rules,” said Senate Republican Leader Scott Wilk of Santa Clarita. “We don’t grow bananas — so there’s no need for a banana republic.”
Agricultural and business groups shared a similar sentiment during the Cal/OSHA board hearing on the emergency temporary standards (ETS).
“While the revised standards are preferable to the existing harsh and unwieldy ETS requirements, they perpetuate the board’s misuse of statutory emergency rulemaking procedures,” argued Jason Resnick, senior vice president and general counsel for the Western Growers Association, in a blog post.
Bryan Little, director of labor affairs for the California Farm Bureau — in referring to the N95 provision — testified that the latest changes were “actually worse in some respects” than the initial standards and difficult to understand. He also complained the board lagged in adjusting the standards to meet the ever-changing COVID-19 situation as well as the governor’s goals.
“[The new regulatory proposal] is plainly at odds with the stated intention of the governor and many of his senior spokespeople that everyday activities should return to normal by June 15,” said Little.
He told Agri-Pulse the regulatory changes undercut the state’s efforts to vaccinate the public as well.
“The only meaningful protection lies in being vaccinated,” said Little. “The continued masking being mandated by the readopted ETS sends exactly the wrong signal: That even if you get vaccinated, you’ll still have to mask, at least at work.”
California Citrus Mutual has advised its members to adhere to the new regulation, which also takes effect on Tuesday, “even though it is contradictory to the state’s reopening guidelines.”
Cal/OSHA plans to add more details to a list of frequently asked questions to clear up the confusion. Eric Berg, a Cal/OSHA deputy chief, said he has been consulting with public health agencies to determine clear guidance on how employers can request vaccination status from workers while complying with anti-discrimination laws.
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Fully vaccinated workers are no longer required to wear masks, except when unvaccinated employees are present in a room. If physical distancing and barriers are not deployed, employers are required to supply N95 masks to unvaccinated employees, though the workers are not required to wear them and can use standard masks instead. Meanwhile, if all agricultural workers in employer-provided housing are vaccinated, spacing requirements between beds are no longer required.
“I would encourage that any amendments or FAQs be very, very robust,” said Chris Laszcz-Davis, a management representative on the board. “So that there is little room for confusion and interpretation, which seems to be a common theme all day long.”
More than 800 commenters registered for the meeting, which lasted more than nine hours and late into the evening Thursday.
Laszcz-Davis called the new regulations more conservative than the latest guidelines issued by the Centers for Disease Control (CDC) and said the board does not have the time or need to work on a permanent regulation for infectious disease in the workplace, as other board members urged in May.
“Did [Cal/OSHA] align to the CDC as was requested? I think that the answer there is no. That begs a different question: Is this actually the best way to do the rulemaking?” said Kate Crawford, another management representative on the board. “The N95 requirements — as we heard over and over from all sides of the equation here — are basically untenable.”
Board Chair David Thomas, a labor representative, acknowledged the N95 issue will be the biggest challenge to overcome but maintained that the priority was to protect workers.
“This is just a measured step in the right direction,” said Thomas. “We're supposed to protect employees in the workplace that are vulnerable. That's our charge.”
Board members urged staff to develop a proposal more in line with the CDC but were unable to provide any clear direction on what should be included.
“The responsible thing to do would be to convene an advisory committee meeting with stakeholders, and let them weigh in on the revisions,” said Christina Shupe, the board’s executive officer. “The reality is that when we do something like that, it requires time.”
The board charged a three-member subcommittee to convene immediately and report back to the board at its June 17 meeting.
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