John Duncan is a former director of the California Department of Industrial Relations and served under two California governors.
He just published a commentary on CalMatters that claims “last minute changes to Cal/OSHA’s COVID regulations are a mistake.” And clarifies that there “is a right way and wrong way to draft a new regulation.”
He says that when adopting difficult workplace policies, rule makers should notify the public and involve stakeholders. Unfortunately, the California Occupational Safety and Health Agency is poised to make a mistake next month on their two-year extension of California’s COVID rules by squeezing in a significant change at the last minute.
Last month, four members of the Cal/OSHA Standards Board ordered the agency’s staff to rewrite the draft regulations and add exclusion pay, which is essentially paid sick leave for an employee who tests positive or is exposed to COVID. If they change the regulation, stakeholders across California will see a significant change made just before the final vote on this two-year extension of COVID precautions.
The merits of whether Cal/OSHA should continue requiring exclusion pay is not the issue, he says. There is a legitimate discussion about exclusion pay, and another legitimate discussion about whether emergency regulations should be extended past the end of the COVID emergency declaration in a few months. My point here is that resolving complicated and important questions requires time to gather data, talk to affected communities and generate workable solutions.
“In my tenure as director of California’s Department of Industrial Relations, occupational safety and health standards were subject to a thorough vetting process, centered around the goal of establishing consensus by using scientific evidence and other underlying data. Maintaining a fair, even-handed and transparent process is critical for ensuring democratic rulemaking and effective compliance with standards that protect California’s workers and employers alike.”
“The question today is how should a regulation be drafted in such a challenging climate?”
He then goes on to say that the answer is with data, careful preparation and stakeholder involvement. In 2009, Cal/OSHA adopted similar regulations for aerosol transmissible diseases in health care settings – and this was not some weak regulation with illusory protections. It was a first-in-the-nation standard and included specific provisions related to training, protective equipment, recordkeeping and more.
Most surprisingly, the rules passed without any opposition when the Cal/OSHA Standards Board voted on it. It was something that may seem unthinkable in today’s divisive times: a consensus regulation based on scientific data, expert stakeholder input and careful discussion.
“Cal/OSHA should look to its past successes and not make such a big change at the last second. Rulemaking is occasionally awkward, loud, disagreeable and painfully slow, but it is the best system out there for such important decisions.”
He concludes his commentary by saying there is “a slogan many sports teams and athletes follow: respect the process. That is an appropriate theme as California once again strives to lead in addressing an important workplace health and safety issue.”