On June 17, 2021, the California Occupational Safety and Health Standards Board voted to approve certain revisions to the Division of Occupational Safety and Health’s (Cal/OSHA’s) COVID-19 Emergency Temporary Standards (Revised ETS). Immediately following the approval, Governor Gavin Newsom issued Executive Order N-09-21 which makes the Revised ETS effective immediately on June 17th, thereby bypassing the typical 10-day review process.

The Revised ETS includes changes to face coverings and physical distancing requirements for vaccinated employees in the workplace and were drafted to reflect the state’s latest COVID-19 public health guidance.

What Happened?

What has changed:

• Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contact with COVID-19 cases;
• No face covering requirements outdoors, regardless of employee vaccination status, except during an outbreak;
• Employers can permit fully vaccinated employees whose vaccination status is documented (see below for documentation requirements) to forego face coverings indoors, except during an outbreak;
• Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request;
• Employers cannot retaliate against workers for wearing face coverings, including when the worker is wearing a face covering voluntarily;
• No physical distancing or barrier requirements regardless of employee vaccination status, except during an outbreak (which may result in some employers maintaining such barriers for some additional time); and
• The Revised ETS defines a “fully vaccinated” employee as someone who has 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. Such vaccine must be either U.S. Food and Drug Administration (FDA) approved, have an FDA emergency use authorization or, if the person was fully vaccinated outside the United States, be listed for emergency use by the World Health Organization. Importantly, an employee’s status as “fully vaccinated” must be documented by the employer. In order to take advantage of the newly loosened restrictions under the Revised ETS, employers will need to request proof of vaccination from employees.
• Employers have the following options for documenting vaccination status:
  (i) employees provide a copy of their vaccination verification card and the employer maintains a copy,
  (ii) employees show proof of vaccination and the employer maintains a record of who presented proof, but not the vaccine card itself; or
  (iii) employees self-attest to vaccination status and the employer maintains a record of who self-attests.

Wilson Sonsini and its technology subsidiary, SixFifty, have created an automated Return-to-Work Toolkit to help businesses safely transition their employees back to the workplace amid COVID-19.

As part of its offering, SixFifty has developed a ticketing tool that is designed to assist employers in collecting and tracking the vaccination status of their employees. Contact Wilson Sonsini for more information.

Additionally, documentation of vaccination status must be maintained as confidential and separate and apart from an employee’s personnel record.

What is staying the same:

• Employers still must maintain an effective written COVID-19 Prevention Program;
• Employers still must provide effective training and instruction to employees on the employer’s prevention plan and their rights under the Revised ETS;
• Employers must remain mindful of federal, state, and local laws regarding anti-discrimination and reasonable accommodation, especially as it relates to those due to a medical condition, a religious belief, or pregnancy;
• Employers still must provide notification to public health departments of outbreaks, and must still notify employees of exposure and close contacts;
• The previous requirements for responding to COVID-19 outbreaks, offering testing after potential exposures, and quarantine/exclusion pay are still in effect; and
• Employers should continue to monitor other guidance issued by county health officers, as such requirements may impose greater workplace obligations.

Nothing in the Revised ETS prevents employers from implementing additional protective measures than are required, including the use of physical distancing and barriers. All employers continue to be under an ongoing requirement to assess workplace hazards and implement effective controls to prevent transmission of disease.

Wilson Sonsini Goodrich & Rosati’s employment law group closely follows developments involving COVID-19-related employment law issues.