Cal/OSHA Updates Guidelines Ahead of State June 15 Reopening

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Foley & Lardner LLPOn June 3, 2021, the California Occupational Safety and Health Standards Board, the standard-setting agency within Cal/OSHA, adopted revisions to the November 30, 2020, emergency COVID-19 prevention standards, reworking the masking, testing, and distancing requirements of the previous rule. The revised standards must be approved by the Office of Administrative Law, but are expected to go into effect no later than June 15.

The revisions will allow all employees in a room to remove their face coverings if everyone in the room is fully vaccinated—two weeks past the second Pfizer or Moderna shot or first Johnson & Johnson shot—and do not have any COVID-19 symptoms. If any employee in the room is not fully vaccinated, masks are still required for all in the room. If working outdoors, fully vaccinated employees and unvaccinated employees without symptoms need not wear a face covering, unless it is an “outdoor mega event” of over 10,000 attendees. This means that, in order to know who can remove a face covering and when, employers may need to know who in the workplace has been fully vaccinated.

Until July 31, for employees indoors or at outdoor mega events, employers can eliminate physical distancing of and partitions between employees if all who are not fully vaccinated are provided face coverings, such as double cloth masks. Otherwise, employers must maintain the previously mandated six-foot physical distancing requirements between employees. After July 31, physical distancing and partitions are no longer required, except during COVID-19 outbreaks. Employers will need to continue to offer unvaccinated employees face coverings after July 31 if working indoors or at an outdoor mega event.

As under the original emergency regulations, when there is a positive COVID-19 case identified in a workplace, employers must give written notice to all employees who may have been exposed (within close contact). The written notice may be by personal service, email, or text message, and must be in a form readily understandable by all employees (including in the native language spoken by the employees). An important addition to the revised regulations is that if an employer reasonably should know that an employee has not received the notice of a positive COVID-19 case, or if the employee has limited literacy in the language of the notice, the employer must provide verbal notice to the employee in a language the employee understands.

After a COVID-19 case is (or multiple cases are) identified at a work site, an employer is required to make COVID-19 testing available to workers who were within close contact to the COVID-19 case during paid time at no cost to the worker. The revised regulation makes exceptions for the testing of workers who were fully vaccinated before the close contact and do not have COVID-19 symptoms, and workers who had previously had COVID-19, but who have had at least 90 days free of symptoms since the initial onset or positive test. The same exception was added to the requirement to exclude from the workplace all employees who have tested positive for COVID-19 and those who had close contact with COVID-19 cases.

Additional changes include revisions to an employer’s written COVID-19 prevention program so as to include training about the effectiveness of the COVID-19 vaccine in preventing transmission and serious illness and death. Employers must also review California Department of Public Health’s Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments. Further, the requirements of the original emergency standards for employer-provided housing and transportation will no longer apply if all occupants of the housing or transport are fully vaccinated.

Although these new regulations do shorten the period of time for which these and the original emergency standards shall apply—from expiring on October 2 to having major changes occur by July 31—the timing of the revised regulations does not track the expected timeline of the California reopening plan anticipated on June 15, which eliminates capacity limitations and physical distancing and follows the CDC’s guidance for face coverings. As such, employers MUST follow the Cal/OSHA original and emergency standards even if in conflict with the CDC guidance or California reopening plan.

As with the initial emergency temporary standards, the new rules will not apply for employees working from home, work locations with only one employee, or employees covered by the Aerosol Transmissible Diseases regulation. It also does not apply to employees teleworking from a place of their choosing outside of the control of the employer.

As of June 4, Cal/OSHA had not updated its FAQs to provide additional guidance on the new rules, though it has indicated they will be updated to reflect them in the near future. The board approved a subcommittee to work with Cal/OSHA on further updates to the rules as necessary.

[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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