Cal/OSHA Adopts New COVID-19 Workplace Standards

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Laughlin, Falbo, Levy & Moresi LLP

In what seems to be an endless bombardment of new information and policy in response to the COVID-19 crisis, Governor Newsom signed EXECUTIVE ORDER N-09-21 on June 17, 2021. The Governor accepted the recommendations of the Occupational Safety and Health Standards Board – bypassing the usual 10 day review period for approval by the Office of Administrative Law.

To add some clarity in this sea of confusion and to lessen prior restrictions, the Emergency Temporary Standards ordered into effect on November 30, 2020 have now (as of June 17, 2021) been modified.

The following is a brief summation of the modified regulations (located in greater detail here):

• Vaccinated employees do not need to be offered testing or excluded from work after close contact unless they have COVID-19 symptoms.

• Vaccinated employees do not need to wear face coverings except for certain situations during outbreaks, and in settings where the California Department of Public Health (CDPH) requires all persons to wear them.

• Employers must document the vaccination status of vaccinated employees if they do not wear face coverings indoors. * Please note this condition is subject to change and may be affected by County Health Regulators.

• Employees are not required to wear face coverings when outdoors regardless of vaccination status except for certain employees during outbreaks.

• Employees are explicitly allowed to wear a face covering without fear of retaliation from employers.

• Physical distancing requirements have been eliminated except where an employer determines there is a hazard and for certain employees during major outbreaks.

• Employees who are not vaccinated may request respirators for voluntary use from their employers at no cost and without fear of retaliation from their employers.

• Employees who are not vaccinated and exhibit COVID-19 symptoms must be offered testing by their employer.

• Employer-provided housing and transportation are exempt from the regulations where all employees are fully vaccinated.

• Employers must review the Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.

• Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air cleaning systems.

These new regulations are not without ambiguity and can be subject to interpretation. For example, what constitutes a “hazard” with regard to physical distancing, and which employees or situations warrant stricter standards than those promulgated by Cal/OSHA. Additionally, some of these regulations are more specific and germane to given industries. For example, food service and healthcare workers may be subject to additional regulations depending on their governing regulating authority.

Further, employers are mandated to update their COVID-19 Response plan to their standard Injury and Illness Prevention Program (Title 8, California Code of Regulations Section 3203).

As the COVID 19 Crisis evolves, so will the regulations. Employers will need to effectively respond to provide a safe and effective workforce and avoid possible penalties for failing to do so.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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