On June 3, 2021, the California Occupational Safety & Health Standards Board approved new modified COVID-19-related emergency regulations. The new modified regulations, which are found here, will need to be approved by the state Office of Administrative Law within ten days. The OAL is expected to approve the rules.
When approved, the new regulations will become effective on June 15, 2021, the same day on which Governor Newsom announced California would reopen. These regulations may be further refined in the coming weeks to take into account changes in circumstances, especially as related to the availability of vaccines and low case rates across the state.
Under the new regulations, for an employee to be considered fully vaccinated, the employer must have documentation showing the person 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. Vaccines must be FDA approved or have an emergency use authorization from the FDA.
When indoors, all workers, regardless of vaccination status, will continue to be required to wear a face covering, unless they are alone in a room or if all the people present in the room are fully vaccinated and have no COVID symptoms.
Fully vaccinated and unvaccinated workers without symptoms do not need to wear face coverings outdoors except when working at “outdoor mega events” with over 10,000 attendees, which may include events or theme parks.
The definition of a sufficient face covering will include only a medical, surgical or two-fabric layer mask, or respirator (N95 mask). Beginning July 31, 2021, employers must provide respirators (N95 masks) for voluntary use to all employees working indoors or at outdoor mega events (over 10,00 attendees) who are not fully vaccinated.
Individuals wearing a respirator (N95 mask) under a Cal/OSHA-compliant respiratory protection program will be exempt from individuals identified under the definition of a “close contact.” The regulations now use the term “close contact” instead of “COVID-19 Exposure,” making the terminology more consistent with that used in the Centers for Disease Control and Prevention guidance. “Close contact” means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period (excluding individuals wearing N95 masks).
Employers must keep physical distancing requirements in place at worksites for all employees (including the fully vaccinated) except for those wearing a respirator (N95 mask), until at least July 31, 2021. Methods of physical distancing include: telework or other remote work arrangements; reducing the number of persons in an area at one time, including visitors; visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path of travel; staggered arrival, departure, work and break times; and adjusted work processes or procedures, such as reducing production speed, to allow greater distance between employees. When it is not feasible to maintain a distance of at least six feet, individuals shall be as far apart as feasible.
COVID-19 Prevention Plan
Employers are still required to have a written COVID-19 prevention plan, which may be separate or a part of the employer’s Injury and Illness Prevention Program. But, the plan must now include information on how the vaccine is effective at preventing COVID-19 and protecting against both transmission and serious illness or death. Further, it is recommended that the plan be updated to reflect the various changes made by the new regulations. The plan should incorporate all applicable orders and guidance including the California Department of Public Health’s Interim Guidance for Ventilation, Filtration and Air Quality in Indoor Environments.
- Employers will no longer need to offer COVID-19 testing to workplace close contacts if the potentially exposed employees were fully vaccinated or had natural immunity (previously infected within the prior 90 days).
- Notifications related to close contacts or outbreaks will be required to be given in a language the employee understands, and verbal notice will be permissible.
- Employers will be required to offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no evidence that the exposure was work-related.
- Fully vaccinated workers who test positive for COVID-19 still have to be excluded from work for 10 days after the positive test, even if they are asymptomatic. But, fully vaccinated workers who do not have COVID-19 symptoms will not need to be excluded from the workplace after a close contact.
- Special COVID-19 prevention measures that apply to employer-provided housing and transportation no longer apply if all occupants are fully vaccinated.
Employers should note that failure to comply with the various requirements may expose an employer to a potential serious and willful claim, and citations from Cal/OSHA.
The author would like to gratefully acknowledge the assistance of Joanne Warriner.