Thursday, September 30, 2021

Vaccine Mandate--What We Know:

On September 9th, President Biden announced a 6-prong plan to fight COVID-19 (available here: https://www.whitehouse.gov/covidplan/). Most important to California’s contractor community is the plan’s first prong (“Vaccinating the Unvaccinated”), which pushes COVID-19 vaccines via two mechanisms:

1.     Federal Emergency Regulation: The Occupational Safety and Health Agency (OSHA) will publish an emergency regulation compelling a “soft” vaccination mandate for all employers with over 100 employees. Experts expect the rule to require employees to get vaccinated or produce a negative test before working every week.

Procedurally, California employers can expect a slight delay before this one becomes applicable. After OSHA passes the federal emergency regulation (the draft text isn’t even public yet), federal law compels Cal/OSHA to enact an equivalent or more stringent standard within 30 days. And even after Cal/OSHA passes that standard, it will likely allow employers 60 days or so to get their workforce into compliance.

2.     Vaccine Mandate for Federal Contractors: All we know at this point is that the federal government will begin adding language to contracts signed or extended after October 15th to compel vaccination (without a testing option) for federal contractors. The specific language to be added is supposed to be drafted by October 8th and is not yet public. The language, when released, is expected to allow federal contractors until December 8th to come into compliance – but, again, that draft contract provision is not yet public.

For both of these mechanisms, employers should keep a few caveats in mind. First – medical and religious exemptions will need to be made for individual employees, meaning that legal and HR will need to be ready to process those issues as the mandates go into effect. Second – legal challenges may delay their effect – particularly for the federal emergency regulation, which one state (Arizona) has already filed suit to challenge. Though some legal experts believe that the vaccine mandate is within OSHA’s authority, that doesn’t mean that a legal challenge may not delay its application considerably – depending on if a district court judge grants an injunction.
 
California’s COVID-19 Workplace Regulation?

Experts expect California’s present COVID-19 emergency regulation to be re-adopted in December for the final time (in roughly its current form – available here: https://www.dir.ca.gov/oshsb/documents/Jun172021-COVID-19-Prevention-Emergency-txtbrdconsider-Readoption.pdf). Then, in spring of 2022, it will either expire or be turned into a permanent regulation.
 
On September 23rd, 2021, Cal/OSHA hosted an advisory committee comprised of business leaders, including CalChamber, labor leaders, public health officials, and other stakeholders, to discuss what a permanent regulation might look like. Notably, this discussion was intended only to help shape a draft of what the Cal/OSHA Standards Board might vote to approve next year and did not represent a commitment from the participants to support a permanent regulation. The draft text for discussion is available here (https://www.dir.ca.gov/dosh/DoshReg/covid-19-emergency-standards/), but this is was only a draft and both labor and business leaders expressed disagreement with various provisions, so we can expect some changes from Cal/OSHA in whatever eventually goes to the Standards Board next year.

But where will the vaccine mandate fit in California’s regulation? Though we don’t have the text yet, it appears likely that Cal/OSHA will adopt a second emergency regulation re: COVID-19 (focused on vaccines) to comply with the federal requirement to adopt an equivalent standard to President Biden’s vaccine mandate within 30 days.

What About Boosters? How Will They Fit into the Federal Regulation or California’s Next Regulatory Text?

At this point, it isn’t clear. President Biden announced booster shots as part of his six-prong plan, but uncertainty about who should get them and when appears to be prevalent. Notably, an advisory body to the Centers for Disease Control and Prevention recommended boosters only for limited population segments (elderly or vulnerable). Still, the CDC director recently overruled the panel and supported boosters for workers in high-risk workplaces as well. That means boosters will be available soon – but it isn’t clear exactly when the federal regulation will mandate they be taken to qualify as fully vaccinated.
 
In short – California employers have a lot to watch in the coming months. Keep one eye on federal OSHA and Cal/OSHA to ensure you stay ahead of workplace changes.
 
 
5 Tips to Choose the Right PLA Ha, made you look! The National Maintenance Agreements Policy Committee, Inc. (NMAPC) negotiates and administers a series of collective bargaining agreements known as the National Maintenance Agreements (NMAs). 1,800+ contractor companies that employ members of 14 building trades international unions use NMAs. They believe “implementing a Project Labor Agreement (PLA) … can make big strides in safety and efficiency, leading to successful project completion and increased owner satisfaction.” You can read their explanation here. (I’m sending you the PowerPoint).

Some Takeaways from September

·   Biden’s Approval Rating Takes a Big Dip: The President’s overall approval rating dipped below the 50% mark this month. The latest leaves him at 43% approval and 53% disapproval in a recent Gallup poll.

·   Retirement Watch: Two-term Congressman Anthony Gonzalez (R-OH-16) announced he would not seek reelection. Rep. Gonzalez was one of the 10 House Republicans who voted to impeach President Trump and is the first of the 10 to announce his retirement.

·   Endorsement Corner: Former President Trump made a series of noteworthy endorsements this month, including:
o   Republican Candidate Harriet Hageman, the primary challenger to incumbent Rep. Liz Cheney (R-WY-AL)

o   Joe Kent, the primary challenger to incumbent Rep. Jaime Herrera Beutler (R-WA-03)

o   Georgia Senate Candidate Herschel Walker (R)

o   Sean Parnell, Republican candidate for the open Pennsylvania Senate seat

o   Michigan state Rep. Steve Carra (R), who is challenging incumbent Rep. Fred Upton (R-MI-06)

o   Anna Paulina Luna, Republican candidate for the open FL-13 seat and the Republican nominee for the same seat in 2020

·   Sen. Chuck Grassley (R-IA) announced he is running for reelection. This effectively moves Iowa into a safer position.

·   California Gov. Gavin Newsom (D) survived a recall election earlier this month. 

·   Rep. Karen Bass (D-CA-37) is leaving Congress to run for mayor of Los Angeles.

·   California made universal mail-in voting permanent. As a result, all registered, active voters will receive a mailed ballot for elections going forward.

·   Gail Huff Brown (R), the wife of former Sen. Scott Brown (R-MA), filed to run against incumbent Democrat Chris Pappas in NH-01.

·   Former Sen. Dean Heller (D-NV) launched a bid for the state’s governorship. 

·   Former Rep. Beto O’Rourke (D) plans to enter the Texas governor’s race. Pundits expect him to announce later this year formally.

Musical Chairs – San Francisco The media has reported that San Francisco Mayor London Breed nominated Assemblymember David Chiu to be San Francisco’s new city attorney, setting off a scramble for Chiu’s seat. Politico reports, “the long-anticipated announcement opens one of San Francisco’s two Assembly seats. Candidates had begun positioning for the post in the months since Breed nominated former City Attorney Dennis Herrera to lead the San Francisco Public Utilities Commission. In profoundly liberal San Francisco, a Democrat will claim Chiu’s seat; the only question is which one. Former San Francisco Supervisor David Campos declared he would run should Chiu step aside, as did Supervisor Matt Haney.

One factor to consider: if Haney wins, Breed will appoint his supervisor replacement, which could mean the relatively centrist mayor picking a moderate rather than a farther-left supervisor. Chiu’s departure also means the Assembly Housing and Community Development Committee, which Chiu currently leads, will get a new chair — an influential position with housing affordability sitting atop Sacramento’s agenda.”

Homelessness Solution? You Decide Governor Newsom signed a package of bills to address homelessness and housing affordability, issues the governor described as “the two biggest pre-existing conditions” the state was experiencing before the Covid-19 pandemic, Politico reports.
“Nothing like the homelessness crisis exists anywhere in the United States like it exists and persists here in the state of California,” Newsom said at a board-and-care facility run by Los Angeles County on the Wednesday bill-signing event.

     AB 1220 by Assemblymember Luz Rivas (D-North Hollywood) creates the new California Interagency Council on Homelessness, which is charged with reviewing and approving homelessness plans submitted by cities and counties to take advantage of state funding.

·        AB 27, also by Rivas, would help identify K-12 students experiencing homelessness and connect them to services.

·        AB 977 by Assemblymember Jesse Gabriel (D-Encino) requires entities that receive funding from state homeless programs to report specified data to the state, allowing policymakers to track better and evaluate the effectiveness of the spending.

·        AB 362 by Assemblymember Sharon Quirk-Silva (D-Fullerton) requires cities and counties to establish a homeless shelter inspection program

·        AB 816 by Assemblymember David Chiu (D-San Francisco) directs National Housing Trust Fund monies to specified homeless uses

·        AB 1443 by Assemblymember Kevin McCarty (D-Sacramento) permits counties to develop training and procedures for taking people into custody for involuntary mental health detention;

·        SB 400 by Sen. Brian Jones (R-Santee) requires local educational agencies to identify youths experiencing homelessness.

I can sense the collective sigh of relief already from the homeless.

New Faces at CSLB The Governor has made the following appointments to the Contractors’ State License Board:
 
·        Cynthia Rich, of Gold River – Public Seat. Rich has been Sole Proprietor of Cynthia L. Rich, Psy.D. since 2015. Rich was Assistant Dean for the Graduate School of Management at the University of California, Davis, from 1989 to 1998. She was Vice President of Marketing at the Greater Philadelphia Chamber of Commerce from 1986 to 1989. Rich was Advertising Manager at the Sacramento Municipal Utility District from 1977 to 1986. She earned a Master of Arts degree in English from California State University, Sacramento, a Master of Arts degree in Psychology from Alliant International University, and a Doctor of Clinical Psychology degree from Alliant International University. She is a member of the California Psychological Association and the Redwood Psychological Association. This position requires Senate confirmation and the compensation is $100 per diem. Rich is a Democrat.

·        Steve Panelli, of San Mateo – Building Official. Panelli has been a Chief Plumbing Inspector at the San Francisco Department of Building Inspection since 2009. He was Senior Plumbing Inspector at the San Francisco Department of Building Inspection from 2005 to 2009, where he was District Plumbing Inspector from 2000 to 2005. Panelli is a member of the International Association of Plumbing and Mechanical Officials Board of Directors and Plumbers and Steamfitters Local 38. This position requires Senate confirmation and the compensation is $100 per diem. Panelli is registered without party preference.