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During an emergency meeting of the Occupational Safety and Health Standards Board (OSHSB) on June 9, 2021, the OSHSB withdrew their proposed revisions to California’s COVID-19 Emergency Temporary Standard and will consider another round of revisions in the very near future. This means that, while the state moves “Beyond the Blueprint” on June 15, California workplaces must still comply with the existing temporary standard requirements, including required face coverings, physical distancing and all the rest.

If you’re getting a sense of déjà vu, it’s because we’ve been here before.   

The California Division of Occupational Safety and Health (Cal/OSHA) and the OSHSB have been working on these emergency temporary standard revisions for a while, a development eagerly anticipated by employers hoping for a return to normal operations as COVID-19 cases continue to fall. However, they haven’t been able to keep up with the new state and federal guidance since, over the past month, proposed emergency temporary standard revisions were already out of sync with the latest information.

Cal/OSHA initially proposed amendments to the standard on May 7, 2021, and the OSHSB was scheduled to vote on the new proposed text on May 20. Agency staff, however, requested that the OSHSB delay its vote so Cal/OSHA could make it more consistent with recent CDC guidance.

On May 13 — one week before the OSHSB was supposed to vote on the revised standard — the CDC updated its guidance, allowing fully vaccinated individuals to go without masks in certain settings. Then, on May 17, California Health and Human Services Agency Secretary Dr. Mark Ghaly announced that starting June 15, “California plans to implement the CDC’s guidelines around masking to allow fully vaccinated Californians to go without a mask in most indoor settings.”

Pointing to these recent developments, Cal/OSHA stated that, “it is important to revisit the proposed COVID-19 prevention emergency regulations in light of this new guidance.” And added that, “The Division will limit any potential changes to consideration of the recent guidance, in order to make possible a targeted effective date of June 15, 2021.” In response, the OSHSB delayed its vote in order to give Cal/OSHA time to make changes.

On May 28, Cal/OSHA published its new proposal for the OSHSB to consider at an emergency meeting on June 3, 2021. After a day-long meeting that included hours of public testimony and internal deliberations, the OSHSB initially rejected the changes, expressing concerns about the revisions and their inconsistency with recent guidance from the CDC and the state’s June 15 “Beyond the Blueprint” reopening plan. Then, after additional discussion, the OSHSB reversed itself, ultimately adopting the revised standard and creating a subcommittee to work quickly to address the remaining concerns. The revised emergency temporary standard was scheduled to go into effect on June 15, 2021.

Then, in another turn of events, on June 7, 2021, the California Department of Public Health reiterated to OSHSB the state’s intent to modify its face coverings requirements to align with the CDC, which is that, as of June 15, face coverings will no longer be required for fully vaccinated Californians in most public settings.

This conflicted with the revisions adopted on June 3, which still required fully vaccinated employees to wear face coverings when in the same room as unvaccinated employees.

In response, the OSHSB called another emergency meeting on June 9, 2021, where it heard briefings from the CDPH and Cal/OSHA, as well as additional public comment on the issue. In light of the new information, the OSHSB voted to withdraw the revisions previously adopted on June 3, which had not yet become effective, so further revisions could be made.

Despite the fits and starts, with the state’s new guidance in hand, Cal/OSHA is expected to make further standard revisions that the OSHSB will consider in the very near future, likely as early as their regular meeting scheduled for June 17, 2021. If the OSHSB approves a new proposal on June 17, 2021, the revised emergency temporary standard could take effect by the end of June.

What changes will be made? Based on the earlier proposals from Cal/OSHA, employers have a good idea of what the revised standard will look like. Revisions will integrate COVID-19 vaccinations, creating exceptions to certain emergency temporary standard requirements for fully vaccinated employees. As previously reported, the amendments will also change certain provisions related to physical distancing, face coverings, workplace exclusions, Personal Protective Equipment, workplace outbreaks and others.

Until then, the original COVID-19 emergency temporary standard remains in effect, meaning that while the state may be reopening on June 15, Cal/OSHA’s workplace requirements — such as face coverings and physical distancing — must be followed for the time being.

CalChamber will continue to keep employers up to date as circumstances develop.

James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor

CalChamber members can read more about the COVID-19 emergency temporary standard in IIPP and COVID-19 in the HR Library. Not a member? See how CalChamber can help you.

The post Once More, With Feeling: Cal/OSHA Withdraws Changes to COVID-19 Emergency Standard, Will Try Again appeared first on HRWatchdog by James W. Ward.

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What is the status of the legal challenge to the CalSavers program? Do employers still need to register?

The Howard Jarvis Taxpayers Association (HJTA) and two of its employees filed an action against the CalSavers Retirement Savings Program (CalSavers) (HJTA v. Cal. Secure Choice (9th Cir. 20-15591)), alleging that the federal Employee Retirement Income Security Act (ERISA) preempts CalSavers.

The district court found that ERISA does not preempt the California law which creates CalSavers and dismissed the action. On May 6, 2021, the Ninth Circuit Court of Appeal agreed with the district court’s decision.

In its decision, the Ninth Circuit Court of Appeal reasoned that a state-run individual retirement account (IRA) program like CalSavers is not “established or maintained by an employer,” such that it would be preempted by ERISA. Employers did not create the CalSavers program, nor do they have any control over how it is operated.

CalSavers Program

CalSavers is a retirement savings program for private sector employees whose employers don’t offer a retirement program. More specifically, it gives employees the opportunity to defer their wages, through payroll deductions by the employer, to a state-managed IRA program.

Private sector employers with at least five California-based employees, at least one of whom is at least 18 years old, and don’t sponsor a “qualified retirement” plan, are required to register for CalSavers.

Qualified retirement plans include:

  • 403(a) Qualified Annuity Plan or 403(b) Tax-Sheltered Annuity Plan.
  • 408(k) Simplified Employee Pension (SEP) plans.
  • 408(p) Savings Incentive Match Plan for Employees of Small Employers (SIMPLE) IRA Plan.
  • 401(a) Qualified Plan (including profit-sharing plans and defined benefit plans).
  • 401(k) plans (including multiple employer plans or pooled employer plans).
  • Payroll deduction IRAs with automatic enrollment.

California employers that are not exempt by way of providing a qualified retirement plan are required to register with CalSavers by certain deadlines, based on number of employees.

Employers with more than 100 employees had a registration deadline of September 30, 2020. Employers with more than 50 employees must register by June 30, 2021, and those with five or more employees must register by June 30, 2022.

Exempt employers may, but are not required to, inform the CalSavers Administrator of their exemption.

Within 30 days of registration, employers must provide CalSavers with certain contact and identifying information for eligible employees, and must also set up a “payroll deposit retirement savings arrangement,” through which employers can remit employees’ contributions to the CalSavers Trust.

After the employer registers, the CalSavers Administrator delivers to all eligible employees an information packet describing the program and giving employees 30 days to opt out.

Upcoming Deadline

The June 30, 2021 deadline for employers with more than 50 employees still stands.

Because the CalSavers program has been upheld, any employers that are not exempt and have more than 50 employees still must register by June 30, 2021.

Employers can register at the CalSavers website, where they can also access Frequently Asked Questions (FAQs) about registration, enrolling employees and more.

Bianca Saad, Employment Law Counsel/Subject Matter Expert, CalChamber

CalChamber members can read more about Private Retirement Savings Plans in the HR Library. Not a member? See how CalChamber can help you.

The post Court Ruling on CalSavers Means Employers of 50> Face Deadline appeared first on HRWatchdog by Bianca Saad.

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