COVID-19: CAL/OSHA Revises Its Emergency Temporary Standards For COVID-19 Preventions And The Governor Expedites Implementation Posted June 21, 2021
California’s Occupational Safety and Health Standards Board has voted to approve its latest round of revisions to the Emergency Temporary Standards (“ETS”) that were first instituted to protect workers from hazards related to COVID-19 in November 2020. The latest revisions reflect the availability of vaccinations (which were not yet available when the original ETS were drafted and approved), and updated guidance from both the Centers for Disease Control and Prevention (“CDC”) and the California Department of Public Health (“CDPH”). The revisions mark a stark movement away from social distancing and physical barriers, and greatly relax the requirement of face coverings for fully-vaccinated employees in most settings.
Typically, the revised ETS would need to go through an administrative review period of up to 10 days at the Office of Administrative Law before taking effect. Superseding that process, Governor Newsom has now signed an Executive Order (click here) codifying the revised ETS, meaning that the changes in the revised ETS took effect immediately upon the Executive Order being filed with the Secretary of State.
The Revised ETS can be found here. On January 16, 2021, the Department of Industrial Relations (“DIR”) also published revised FAQs to further explain the revisions; these FAQs can be viewed here.
FIVE KEY CHANGES IN THE REVISED ETS
1. Mask Requirements:
Fully-vaccinated employees can skip wearing face coverings indoors in most workplaces, but first must confirm their vaccination status (see below for more information on this requirement).
Face coverings are required for all employees (regardless of vaccination status) in public transit, K-12 educational facilities, health care and long-term care settings, correctional and detention facilities, and shelters (homeless or emergency shelters and cooling shelters).
During outbreaks (see below), all employees (regardless of vaccination status) must wear face coverings indoors and outdoors when they cannot maintain six feet of physical distancing
Unvaccinated employees still must wear face masks indoors except when they are alone in a room or vehicle, while eating or drinking, when an accommodation is required, or when job duties make a face covering infeasible or face coverings could create a hazard.
Employers may not retaliate against employees who choose to wear a face mask, even if not required to do so.
There are no face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers should be trained on CDPH recommendations for outdoor use of face coverings.
2. Vaccination Documentation:
An employer documentation process is required for fully vaccinated employees to work indoors without a face covering. Acceptable options for this documentation include the following:
The employee provides proof of vaccination (their vaccine card, an image of their vaccine card, or health care document showing vaccination status) to the employer, and the employer maintains a copy; or
The employee shows the employer proof of vaccination and the employer maintains a record of whether the employee is vaccinated, but does not maintain the vaccine record itself; or
The employee self-attests to the employee’s vaccination status and the employer maintains a record of their status based on the self-attestation. The self-attestation should be in writing.
It is important to note that employees have the right to decline to state whether or not they are vaccinated. In that scenario, the employer must treat the employee as unvaccinated and may not take disciplinary, discriminatory or retaliatory action against the employee.
Physical distancing and physical barrier requirements have been lifted, regardless of employee vaccination status, with the following exceptions:
During an outbreak (three or more employees in an exposed group during a 14-day period), employers must evaluate whether it is necessary to implement physical distancing and barriers.
During a major outbreak (20 or more cases in an exposed group of employees), employers must implement physical distancing and barriers for all employees, regardless of vaccination status.
Notably, nothing in the revised ETS prevents employers from continuing to use physical barriers currently in place, nor from implementing additional protective measures, including the use of physical distancing and barriers. Employers should consider leaving such barriers in place for now, to avoid having to re-create them if necessary.
4. Quarantine Protocols:
Fully vaccinated employees need not be tested or quarantined after close contacts with COVID-19 cases, unless they are symptomatic. Unvaccinated employees must continue to quarantine for 10 days after exposure. All employees who are positive for COVID-19 must continue to quarantine for 10 days, regardless of vaccination status.
5. Employers Should Keep Respirators, Such as N95 Masks, On Hand:
Employers must provide respirators in two scenarios: 1) to any unvaccinated employee upon request, if that employee works with others indoors or in a vehicle; and 2) to all employees in a major outbreak, regardless of vaccination status and without waiting for a request from the employee.
Employers should stock respirators to have on hand, should an unvaccinated employee request one. An unvaccinated employee can communicate their request to wear a respirator to the employer at any time. Cal/OSHA has provided a list on their website of vendors that sell N95 respirators in large quantities (click here).
If an employee prefers to select and purchase their own respirator, an employer may permit this alternative and must reimburse the employee.
If an employer is providing a respirator at an employee’s request, the CDC recommends replacing a disposable filtering face piece respirator (such as an N95) after it has been taken on and off five times. Filtering face piece respirators may not fit correctly after repeated use.
Employers should remind employees that medical decisions, including vaccination status, are confidential and private. Discourage discussions of vaccination status in the workplace, and remind employees that harassment, discrimination or retaliation against others based upon their vaccination status or face covering preferences is prohibited.
The revised ETS and the Governor’s Executive Order finally offer good news for employers and employees alike, and it is certainly encouraging to see a positive trend toward “normal” life after a very difficult pandemic year!
For questions regarding CAL/OSHA’s Revised Emergency Temporary COVID-19 Prevention Standards or other employment law issues, contact the employment attorneys at LightGabler.