Governor Newsom announced that California will reopen its economy on Tuesday, June 15, 2021. No more tiers and no more no purple, red, orange and yellow region colors. The California Department of Public Health (“CDPH”) stated, “… Californians will see life getting back to normal.” Unfortunately, it appears that “normal” applies to everything but the workplace.
To explain what “… getting back normal” means to the CDPH, the agency released a memo to all Californians, noting that on June 15, 2021, all sectors of business currently listed on the State’s Blueprint (click here), “…may return to usual operations (with the limited exceptions for mega events) based on the following general public health recommendations”:
Except for mega events (discussed very briefly below), the CDPH memo means that on June 15, 2021, most businesses in California would be able to operate without COVID-19 limitations – no capacity restrictions, no physical distancing requirements, and those individuals who have been fully vaccinated* should be able to go mask-less in most instances both indoors and outdoors (but before you get too excited, be sure to read the Cal/OSHA section below).
According to the CDPH, “People are considered fully vaccinated for COVID-19: “two weeks or more after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or two weeks or more after they have received a single-dose vaccine (Johnson and Johnson [J&J]/Janssen).” As well, CDPH changes also aligned California’s views on travel, both international and domestic, with those of the federal Centers For Disease Control and Prevention (“CDC”).
Two additional points about the CDPH memo are worth noting. First, the CDPH memo states that additional guidance is forthcoming for “youth, healthcare and high-risk congregate settings.” If that applies to your organization, watch for further guidance in the coming weeks before making any changes. Second, the CDPH noted that mega events have different rules. Mega events are any “planned public or social occasions that include over 5,000 participants or spectators indoors and over 10,000 outdoors … characterized by large crowds where participants and spectators may be talking loudly, chanting, cheering, or yelling.” Because of the higher risk of potential COVID-19 transmission, attendees at mega events will be required to provide vaccination verification or a pre-entry negative test, and must continue wearing masks.
Although the State’s announcement is great news, and something which we have all been anxiously awaiting since the inception of the pandemic, the State was also very clear to caution employers that they still remain, “…subject to the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (“ETS”), if applicable to them.”
As a quick reminder, the ETS apply to all California employers, their employees, and to all places of employment, with three very limited exceptions:
So where does that leave ETS-covered employers now? The ETS have remained largely unchanged since they were first published in late November 2020. Employers subject to the ETS remain bound to follow the ETS to the extent that the ETS are more restrictive than any applicable local rule, state CDPH advisory, or federal CDC guidance. The good news is that ETS change is on the horizon, but the bad news is that those changes provide little, if any, relief.
On June 4, 2021, the Cal/OSHA Standards Board approved proposed revisions to the original ETS; these revisions can viewed here. After Board approval, the proposed ETS revisions were submitted to the Office of Administrative Law (“OAL”) for final approval. The OAL has ten days to approve or deny the ETS; it is assumed that they will approve them shortly. The Cal/OSHA website indicates, “Upon approval by the Office of Administrative Law, these new standards will be effective June 15, 2021.”
Although it was hoped by many that that Cal/OSHA’s ETS revisions would have more closely aligned the ETS to the State CDPH’s COVID-19 reopening plan (discussed above) and the recently revised guidance from the CDC on vaccinations and face coverings, Cal/OSHA did just the opposite: it issued proposed revised ETS that are significantly more restrictive than either the CDPH or CDC guidance.
Before getting into the details of the proposed ETS revisions, it is critical to note that the proposed ETS revisions are not effective until formally approved by the OAL. Until the revised ETS are formally approved by the OAL, the original ETS remain in effect and must be followed. For those needing a refresher on the original ETS, you can find Cal/OSHA’s ETS FAQs here.
The DIR issued a news release on the revised ETS on June 4, 2021. To review the DIR news release in full, click here. Below is a short summary of three major changes contained in the revised ETS (the draft revisions are currently under review by the OAL) as covered by the DIR:
Despite what the local, CDPH or CDC guidance might indicate to the contrary, the ETS still mandate that employers provide face coverings to employees, and ensure that those face coverings are worn.
Indoors: “…fully vaccinated workers without COVID-19 symptoms do not need to wear face coverings in a room where everyone else is fully vaccinated and not showing symptoms. However, where there is a mixture of vaccinated and unvaccinated persons in a room, all workers will continue to be required to wear a face covering.”
Outdoors: “…fully vaccinated workers without symptoms do not need to wear face coverings. However, outdoor workers who are not fully vaccinated must continue to wear a face covering when they are less than six feet away from another person.”
Under the ETS, a face covering is defined as, “… a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers. A face covering has no visible holes or openings and must cover the nose and mouth. A face covering does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.”
The ETS also state that for an employee to be considered fully vaccinated, the employer must have, “… documentation showing that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Vaccines must be FDA approved or have an emergency use authorization from the FDA.” For employers with employees working abroad, this definition of “fully vaccinated” may exclude vaccines that are approved by the World Health Organization, but not the FDA.
The DIR news release noted, “When the revised standards take effect, employers can eliminate physical distancing and partitions/barriers for employees working indoors and at outdoor mega events if they provide respirators, such as N95s, to unvaccinated employees for voluntary use. After July 31, physical distancing and barriers are no longer required (except during outbreaks), but employers must provide all unvaccinated employees with N95s for voluntary use.”
Under the ETS, a respirator is defined as “a respiratory protection device approved by the National Institute for Occupational Safety and Health (“NIOSH”) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.”
For any employers intending to use respirators in the workplace, be advised that OSHA requires compliance with its standards surrounding proper fitting and use of respirators. A fact sheet on respirator use and fitting from the DIR can be viewed here.
Workplace Exclusion (Quarantine):
If a fully-vaccinated worker is exposed to COVID-19, but does not have any COVID-19 symptoms, the worker must continue to self-monitor for COVID-19 symptoms but need not be excluded from the workplace. By contrast, non-vaccinated workers must follow the normal workplace exclusion and quarantine rules, as would any fully-vaccinated worker who develops COVID-19 symptoms.
The short summary above covers only a few of the many proposed changes to the ETS. Once the OAL formally approves the revised ETS (in whatever form the final revised ETS might take), LightGabler will conduct an in-depth review of the revised ETS rules and what those rules mean for California employers.
For now, employers must continue to follow the currently-approved (original) version of the ETS. Once the revised ETS are approved by the OAL, the revised ETS will be the governing standard for most California employers on COVID-19 safety in the workplace. This is true despite more permissive guidance or advisories issued by local jurisdictions, the CDPH or the CDC.
Employers also are cautioned to check their local, city or county rules, as the CDPH and California continue to allow local jurisdictions to set their own COVID-19 rules. If a local rule is more restrictive than the ETS, the local rule would control (e.g., Santa Clara County and its vaccination information collection).
We conclude this legal update with a glimmer of hope: the Cal/OSHA Board of Supervisors has indicated that further changes to the revised ETS should be issued in the near future, and that it, “…may further refine the regulations in the coming weeks to take into account changes in circumstances, especially as related to the availability of vaccines and low case rates across the state.” The Board has created a subcommittee of three of its members to work directly with Division of Occupational Safety and Health (“DOSH”) on those further revisions.
Like each of you, we are hopeful that Cal/OSHA will work rapidly with the DOSH to more closely align its ETS to the guidance issued by the CDPH and CDC, and that soon, “… Californians will [actually] see life getting back to normal.”
For further information regarding COVID-19 questions, or other employment law issues, contact the attorneys at LightGabler.