Cal/OSHA Finally Approves Revised COVID-19 Emergency Temporary Standards

Pillsbury Winthrop Shaw Pittman LLP

Cal/OSHA issues guidance regarding revised standards, so employers should have more clarity on documentation of vaccination status and requirements for unvaccinated workers.

TAKEAWAYS

  • Employers must record confidential vaccination status for workers not wearing face coverings indoors.
  • Employers cannot retaliate against workers who decline to state vaccination status or those who voluntarily wear face coverings.
  • Employers must provide face coverings (or upon request, respirators) to unvaccinated workers.

To follow-up on our previous alert of June 15, 2021, California’s Occupational Safety and Health Standards Board (Board) has approved revisions to the COVID-19 Prevention Emergency Temporary Standards (ETS) that eliminate physical distancing requirements and update other requirements (e.g., face covering, testing, exclusion from work) for fully vaccinated employees. The new and improved ETS is expected to go into effect on or around June 28, 2021. Consistent with his earlier announcement, Governor Newsom signed an Executive Order on June 17 to make the ETS effective the day it is filed with the Office of Administrative Law.

Vaccination Status

On June 16, 2021, the California Occupational Safety and Health Administration (Cal/OSHA) published answers to Frequently Asked Questions (FAQ) regarding the now-revised ETS. As noted in our previous alert, the definition of “fully vaccinated” requires documentation of such status. Cal/OSHA has provided the following guidance:

  • Employers are not obligated to require proof of full vaccination. However, employers must record vaccination status for any employee not wearing a face covering indoors—this record must be kept confidential.
  • Employers may either (1) maintain a copy of an employee’s proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status), (2) maintain a record of the employees who presented proof (in lieu of maintaining a copy of the proof), or (3) maintain a record of the employees who self-attest regarding vaccination status.
  • Instead of having a documentation process, employers may require all employees to wear a face covering.
  • If an employee declines to state vaccination status, employers must treat that employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.

Face Coverings and Respirators

The FAQs also contain the following guidance:

  • For unvaccinated workers, employers must provide face coverings. For vaccinated workers, employers must make face coverings available upon request.
  • Employers must communicate and recommend, but not require, that unvaccinated workers wear face coverings outdoors where six feet of physical distancing cannot be maintained.
  • Employers cannot retaliate against workers for wearing face coverings, even if worn voluntarily.
  • For unvaccinated workers, employers must provide respirators upon request. Cal/OSHA’s rationale is that a “a well-fitting respirator reduces the risk of infection better than physical distancing alone.” Because physical distancing has been phased out of the ETS, voluntary respirators are “an alternative protection for unvaccinated employees.”

As a reminder, the new and improved ETS still requires employers to maintain an effective written COVID-19 Prevention Program.

[View source.]

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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