On June 11, 2021, California’s Division of Occupational Safety and Health (Cal/OSHA) Board released its latest set of proposed revisions to its COVID-19 Emergency Temporary Standards (ETS). On June 17, 2021, Cal/OSHA met and voted to adopt the new COVID-19 Emergency Temporary Standards (New ETS).
Shortly thereafter, California Governor Gavin Newsom signed an Executive Order to make the New ETS go into effect immediately, eliminating the usual 10-day administrative law review process.
The New ETS, adopted after three previous versions, attempts to align with guidance from the US Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH). The New ETS is applicable to most California employers.
The key components of the new standards are as follows:
- Employees who are fully vaccinated do not have to wear masks indoors. The New ETS exempts “fully vaccinated” employees from wearing face coverings indoors. Employees who are not fully vaccinated are required to wear face coverings while indoors or in vehicles. Masks are not required when an unvaccinated employee is alone in a room, eating or drinking while maintaining physical distancing or while wearing a respirator. The New ETS also provides that employees who are fully vaccinated should be able to wear face coverings indoors without retaliation.
- If an employer allows vaccinated employees to work indoors without a mask, it must maintain records of employees’ vaccination status. The New ETS defines “fully vaccinated” as employees who an employer has documented proof of full vaccination. The New ETS does not specify the method by which employers must document and maintain records of vaccination. Cal/OSHA has clarified that acceptable options of documentation include employee proof of vaccination (a vaccine card or health care record) or a self-attestation. Employers must ensure to keep records of vaccination status confidential. Further, the ETS does not require that employers require employees to submit proof of being fully vaccinated. If an employee declines to provide proof of vaccination status, the employer must treat an employee as unvaccinated.
- Upon request, employers must provide respirators to unvaccinated employees. The New ETS requires that upon request, employers must provide respirators to all employees who are not fully vaccinated and who are working indoors or in vehicles with more than one person. Employers need only provide respirators upon request by the employee, not mandate their actual use.
- Training requirements. Employers must continue to provide COVID-19 training, including new training subjects like COVD-19 vaccination and testing access and policies, respirator policies and leave policies.
- Vaccination documentation. The New ETS requires that employers have documentation of employee vaccination status to take advantage of provisions specifically applicable to vaccinated employees. What is not clear is exactly what documentation will be appropriate (proof of vaccination card or an employee self-certifying that he or she has been vaccinated). We expect Cal/OSHA to issue additional clarification in forthcoming guidance.
- No physical distancing. The New ETS eliminates physical distancing altogether. However, employers who experience an outbreak or major outbreak will need to evaluate whether to reinstate physical distancing requirements.
- Notice of exposure may need to be also provided verbally. The New ETS requires that in addition to providing written notice to employees if there is a COVID-19 case in the workplace, employers must also provide “verbal notice” if an employer does not believe the employee would have reasonably received written notice or has limited literacy in the language in which the written notice was provided.
The New ETS also modifies steps employers must take in the event of an “Outbreak” (defined as three or more employee COVID-19 cases within an exposure group who visited an employer’s workplace within a 14-day period) or “Major Outbreak” (defined as 20 or more COVID-19 cases within an exposure group who visited a workplace during a high-risk exposure period within a 30-day period).
In an Outbreak or Major Outbreak, employers must:
- Make testing available at no cost to employees within “an Exposed Group.” The New ETS defines an “Exposed Group” as “all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period.” In the event of an Outbreak or Major Outbreak, testing must be provided during working hours to the Exposed Group at proscribed intervals. However, in the case of an Outbreak, testing need not be provided to employees who are fully vaccinated and who do not have COVID-19 symptoms, or who had COVID-19 in the last 90 days but never developed COVID-19 symptoms. In the case of a Major Outbreak, testing must be available to all employees in the Exposed Group, regardless of vaccination status.
- Provide a respirator to all employees in the Exposed Group for voluntary use.
- Consider implementing social distancing requirements.
- Provide notice to the Exposed Group of their right to request a respirator and notice of the outbreak.
- Require that employees wear face coverings when indoors or outdoors, unless the employee can social distance.
In addition, in a Major Outbreak, an employer must:
- Separate employees in the Exposed Group who are wearing respirators six feet away from those who are not wearing respirators unless doing so is not feasible. If it is not feasible to implement this separation, an employer must install cleanable solid partitions that reduce transmission between employees.
- Make testing available to all employees in the Exposed Group, regardless of vaccination status.
Cal/OSHA promised that additional guidance will be forthcoming which will hopefully address additional issues, including whether an employer must provide respirators immediately upon request.