California Gov. Gavin Newsom appeared disinclined Friday to insert himself into the regulatory process for workplaces after a state safety board upset business groups by approving new rules that require all workers to wear masks unless everyone around them is vaccinated against the coronavirus.
The revised rules, approved after a long and sometimes contentious meeting Thursday, eliminate social distancing requirements in workplaces but run counter to Newsom’s plan to ”fully” reopen California in less than two weeks and allow vaccinated people to skip face coverings in nearly all situations.
Critics hadn’t decided if they will push Newsom to override the worksite rules adopted on the second try by the board that sets standards for California’s Division of Occupational Safety and Health, known as Cal/OSHA.
“Who knows what Gavin Newsom’s going to do exactly? But I think that this, even revised as they did yesterday, is wildly at variance with what the governor has indicated he wants to do on June 15,” said Bryan Little, California Farm Bureau director of employment policy.
Cal/OSHA’s regulations apply to almost every workplace in the state, including workers in offices, factories and retail operations. Its pandemic rules apply to all employees except those working from home or where a single employee does not have contact with others. The revisions are expected to take effect in mid-June.
Newsom said he was beginning to review the decision by what he called an independent board but that is one he appoints.
“We’re pleased they made progress moving in the right direction,” he said Friday.
But Newsom urged the board to keep revising its rules as infection rates fall and vaccinations increase, and he promised to keep working with management and labor “to see where we land.”
“This is the sausage-making process,” Newsom said. “As you know, it was quite an intense conversation,” referring to the previous day’s meeting that saw the board first reject the new rules on a 4-3 vote but then vote again and unanimously approve them.
The vote change was prompted by realization that if the new rules weren’t approved it would leave employees in workplaces subject to the current standards that require masks for all employees regardless of vaccination status, along with social distancing and partitions between employees in certain circumstances.
The new rules are an improvement but business groups want more changes, said California Chamber of Commerce policy advocate Rob Moutrie.
Newsom likely faces a recall vote in the fall, driven by critics of his stewardship of the state during the health crisis. Newsom has been aggressive in using executive orders to impose policies and in the early months faced backlash even from some fellow Democrats that he was doing too many things that circumvented the Legislature’s constitutional powers to provide checks on the executive office.
Newsom in December used his executive authority to amend a Cal/OSHA board rule, but that was only to bring the regulation into compliance with federal guidance by shortening the length of quarantine periods from 14 days to 10 days.
At a news conference he was asked specifically if he would use an executive order to overturn the board’s decision on masks. He said there remain unanswered questions from the board’s action but said it is “healthy” that the governor not determine their decisions even as he more broadly guides the state’s reopening and worker policies.
“Face coverings remain an important part of our arsenal,” Newsom said. “I know a lot of employers support that.”
One of those seeking his job, Republican former San Diego Mayor Kevin Faulconer, called the board’s decision on masks “just another example of Gavin Newsom refusing to follow the science and sowing confusion among the people of California.”
A newly appointed board subcommittee is beginning to consider revisions that could be discussed when the board next meets on June 17. But any significant changes can’t realistically be considered until August at the earliest, board executive officer Christina Shupe said.
CalChamber’s Moutrie said business groups have not been in touch with the governor’s office and expect to work through the regulatory process.
“Obviously this is an emergency regulation with the most urgent issue in the state or the nation,” said Moutrie, so the board’s staff “will move heaven and earth to the extent they can.”
Moutrie hoped for swifter action if the board limits changes to removing what employers called an expensive and unrealistic requirement that they provide the most effective N95 masks to any worker who asks for them, starting July 1. That was one of the most contentious provisions and will otherwise force employers to stockpile millions of masks in competition with health care workers, business groups said.
Many other concerns, such as clarifying what employers called confusing record-keeping rules, could be done without new regulations, Moutrie and Little said.
Derek Tran, an attorney who focuses on employment law but is not lobbying the board, expects it’s “going to be another lengthy rule change, outside of the governor stepping in and mandating something different.”
“He does hold a lot of authority and sway on what he wants. This is his board,” Tran said.
He expects the conflicting rules will further confuse the public as the state reopens in mid-June. In the workplace, the new rules will force employers to distinguish between those who are vaccinated, unvaccinated, or unable to be vaccinated because of other health considerations.
“That opens a whole can of worms” as employers learn of workers’ underlying health issues, Tran said. “It opens the possibility of discrimination. … That opens the door for a lot of litigation.”