The governing board that sets the standards for Cal/OSHA will decide Thursday which COVID-19 workplace restrictions can be lifted when Gov. Gavin Newsom reopens California on June 15. Farm groups and business interests are pushing the board to drop the emergency standard.
“California has the highest vaccination rates, lowest case numbers and lowest positivity rates in the world,” said Michael Miiller, director of government relations for the California Association of Winegrape Growers (CAWG) at a May hearing for the board. “Keeping the ETS [emergency temporary standard] in place ignores the efforts of millions of Californians in achieving that success, and importantly, the public health benefits of that success.”
The board was set to adopt changes to its COVID-19 regulations in May, but delayed the decision in light of new guidance from the Centers for Disease Control (CDC) that fully vaccinated people can resume some activities without wearing masks.
Staff had recommended the board still require masks for all workers and added a requirement to supply unvaccinated workers with N95 respirators. This raised concerns from a number of groups about how an employer would be able to determine who is vaccinated without violating privacy standards.
Agricultural and business groups argued the provision would stress N95 supply lines that are just beginning to recover, and that it would also complicate efforts to get masks to farmworkers for protection against smoke as the state enters another potentially severe wildfire season. In 2019 the standards board passed a regulation requiring employers to supply farmworkers and other employees working outdoors with N95 respirators when smoke from wildfires is present.
Rob Moutrie, a policy advocate for the California Chamber of Commerce, estimated the provision would mean that more than two million workers would be using at least two N95s each week. Farm groups worried demand for the masks would skyrocket in a pattern similar to one at the start of the pandemic, leading to higher costs and scarcity.
“We need to go back to the drawing board here,” said Bryan Little, director of labor affairs for the California Farm Bureau. “The agency and standards board should seriously reconsider the necessity of any COVID-19 standard or any infectious disease standard.”
Michael Miiller, CAWG director of government relations
Little said the regulations would not keep pace with the rapidly evolving situation with vaccinations and declining case rates in California. He pointed to existing regulatory tools the agency already has at hand without the emergency standard.
The initial regulations became immediately outdated the day the board approved them in November, because vaccines were available just weeks later, argued Little. The state has now gone six months without updating the regulations to reflect vaccinations, a concern raised in November as well.
“Because this is a formal regulation, it takes six months to add a comma,” said Miiller. “Employees and employers are taking action today and need clear guidelines today that reflect the current science and data.”
He pointed out that Cal/OSHA staff had testified in 2020 that COVID-19 workplace enforcement actions were already occurring under existing regulations and an emergency standard was not needed.
Farmworker groups, however, saw the pandemic response differently.
“We are where we are with a lower rate because of the protections that were put into place,” said Cynthia Rice, director of litigation for the labor rights group California Rural Legal Assistance. “[The existing regulations] didn't work last year.”
Rice called the emergency standard critical to protecting workers, especially in agriculture. She said industries like this that pay low wages to workers generally have a high incidence of failing to comply with record keeping and reporting requirements.
“To suggest that an employer would not falsify vaccination records in order to avoid the cost of providing masks and social and physical distancing is not a reality in the low-wage worker world,” said Rice. “In agricultural areas, we are finding a lower rate of vaccinations and a continued higher rate of case outbreaks, when compared to California at large and even the nation.”
Miiller shot back that no evidence supports Rice’s assertions, saying his members had been seeing strong vaccination rates among employees. Miiller also pointed out that Santa Cruz County has had more than 16,000 cases and reported that 92% of the known exposure sources came from outside the workplace.
“Many of our employers now have vaccination rates that are higher than the community vaccination rates. Yet the ETS places tighter restrictions on that workplace than the restrictions that exist in the community. This makes no sense,” said Miiller. “If it is true that Cal/OSHA has no available data, then Cal/OSHA has failed to justify the continuing need for the ETS.”
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Mitch Steiger, a legislative advocate for the California Labor Federation, AFL-CIO, argued that not having an adequate database of outbreaks and where they occur means the state does not have the information at hand to make a decision like removing the mask mandate. He also questioned the data available on vaccine efficacy.
“Vaccines aren't 100%,” said Steiger. “There could be other variants still coming.”
He said easing the regulations could lead to workers who are immunocompromised being surrounded by people who are unmasked and unvaccinated, raising the risk for a breakthrough case to occur. He called it a fantasy for the CDC to assume unvaccinated people would willingly wear N95 masks without a mandate.
Bryan Little, California Farm Bureau director of employment policy
“Those out there who are very intent on not getting the vaccine are the exact same ones who are not going to wear a mask,” he said.
Steiger added that even though the state may have only 50 deaths per day, that is still too many people to lose.
“If we had 50 people a day dying from wildfires, I don't think we would say, ‘Well, that's a pretty good number,’” he said. “We've just gotten used to these really staggering death tolls.”
He urged the board to maintain partitions and physical distancing along with masking.
The board will also be considering whether to make the emergency standard a permanent regulation, to the objections of the industry.
“I'm worried that the light at the end of the tunnel is this ETS, which is an oncoming train,” said Miiller.
Board members saw the slow pace of the board’s regulatory process, as Miiller had pointed out, was enough reason to consider a long-term proposal.
“We've got to look at a permanent standard,” said Chris Laszcz-Davis, the management representative on the board. “I don't think that when the next pandemic, the next novel virus shows up, we want to go through this exercise again.”
Others argued against “rolling back” any of the worker protections.
“We don't want to get stupid,” said Board Chair David Thomas. “We just want to hang in there and do the things that we know will protect us and protect those around us.”
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