California’s Revised Cal/OSHA COVID-19 Emergency Temporary Standards Send Mixed Signals to Employers

Laughlin, Falbo, Levy & Moresi LLP

Laughlin, Falbo, Levy & Moresi LLP

Following the lead of the National Institute of Health (NIH), Cal/OSHA has promulgated new and modified emergency temporary standards for employers in response to the COVID-19 crisis. On June 3, 2021, the Occupational Safety and Health Standards Board readopted Cal/OSHA’s COVID-19 prevention emergency temporary standards and adopted revised standards. The revised standards reflect the easing of employer restrictions.

These updated standards are expected to go into effect on June 15, 2021 if approved by the Office of Administrative Law. They apply to most workers in California not covered by Cal/OSHA's standard for aerosol transmissible diseases. Please note, the term “vaccinated” applies to persons that are fully vaccinated depending on regimen of their vaccination. The issues regarding boosters will be addressed by later NIH determinations. Other noteworthy revisions include:

  • Under the revised rules, workers do not have to wear masks outdoors regardless of their vaccinations status, except when working at outdoor "mega events" with more than 10,000 attendees;
  • Indoors, workers still have to wear masks regardless of their vaccination status;
  • Vaccinated workers without COVID-19 symptoms do not have to wear masks in a room where everyone else is also fully vaccinated and not showing symptoms;
  • Vaccinated workers without COVID-19 symptoms do not need to be excluded from the workplace after close contact with someone who has the virus;
  • The elimination of physical distancing barriers for both indoor and outdoor employees, provided that respirator masks (N95s) are provided for unvaccinated employees for voluntary use;
  • These regulations do not apply to workers who are subject to other guidelines for airborne or communicable diseases such as health care workers.

All employers are still required to maintain an “Injury and Illness Prevention Plan”. As part of that plan, employers must review the California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments. Employers will also be required to include information in their prevention training on how vaccines are effective at preventing transmission of COVID-19 and serious illness or death.

The criticality of implementing these revised emergency temporary standards cannot be understated. Existing policies and procedures should be reevaluated to confirm that they comply with Cal/OSHA’s revisions. The failure to do so on the part of the employer may expose the employer to a potential serious and willful claim, and citations from Cal/OSHA.

Although the revised standards reflect an easing of some workplace restrictions, they also create new burdens for California employers. It appears that employees must still wear masks for the foreseeable future (unless everyone in a given room is fully vaccinated). Employers must track workers’ vaccinations status and procure N95s. With health care workers in need of N95s and with California’s wildfire season approaching its peak, the cost of N95s will burden smaller employers. While Governor Newsom has the power to overrule the agency with an executive order, he does not appear poised to do so.

While these Cal/OSHA standards relax some of the requirements for employers, it should be noted that Cal/OSHA has no bearing whatsoever on liability for workers’ compensation claims. The presumptions that are in place pursuant to Labor Code sections 3212.87 and 3212.88 remain in effect until January 1, 2023. Recall one of the methods to rebut the presumption is based on measures the employer implemented to reduce potential transmission of COVID-19 in the workplace. Employers should remain very cautious. A policy that requires use of a mask in all common areas, regardless of vaccination status, is certainly a “measure to reduce potential transmission."

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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