In the face of criticism for its recently proposed standards about mask wearing and social distancing, the California Division of Occupational Safety and Health (“Cal/OSHA”) has now announced revised amendments to its existing workplace safety rules for California employers. Unlike the revisions adopted by the Cal/OSHA Board (the “Board”) on June 3, Cal/OSHA’s new proposed rules—which will be voted on Thursday, June 17 and could take effect immediately under an expected order from the Governor—are more aligned with recent federal and California guidance loosening restrictions on employees who are fully vaccinated.
Cal/OSHA Rulemaking Background
The current Cal/OSHA COVID Emergency Temporary Standards (“ETS”)1 (adopted November 2020) require employees to wear face coverings indoors at all times, with limited exceptions, such as when an employee is alone in an enclosed room, or when eating or drinking. On June 3, the Board voted to approve amendments to Cal/OSHA’s current ETS (“June 3 Revisions”), which would have permitted fully vaccinated employees to forgo face coverings indoors, but only if all other employees in the room were also fully vaccinated and not experiencing COVID‑19 symptoms. The June 3 Revisions were set to go into effect no later than June 15.
On June 9, however, the California Department of Public Health (“CDPH”) released new face covering guidance dispensing with the indoor masking requirement for fully vaccinated individuals beginning June 15, with a few exceptions.2 Hence, Cal/OSHA’s June 3 Revisions requiring employees to wear masks indoors unless all employees were vaccinated did not align either with CDPH’s June 9 guidance or with the Centers for Disease Control and Prevention’s (“CDC”) earlier May 28 guidance for fully vaccinated individuals.3
Based on this updated CDPH Guidance, and in response to a letter from CDPH,4 the Board held a special meeting on June 9, during which it voted to withdraw the June 3 Revisions. Thus—notwithstanding the relaxed CDPH Guidance that goes into effect June 15 and its now withdrawn June 9 guidance liberalizing the November 2020 rules—Cal/OSHA still requires in most circumstances that “[e]mployers shall provide face coverings and ensure they are worn by employees over the nose and mouth when indoors, [and] when outdoors and less than six feet away from another person.”
The Board will consider amendments to the current ETS on June 17 (as proposed, the “June 17 Revisions”). Those June 17 Revisions5 generally align with the CDPH Guidance:
- “For all employees who are not fully vaccinated, employers shall provide face coverings and ensure they are worn when indoors or in vehicles.”
- “Employers shall provide face coverings and ensure they are worn by employees when required by orders from the CDPH.”
The June 17 Revisions also direct that, upon request, employers must provide respirators, such as N95 masks, for voluntary use to unvaccinated employees who are working indoors or in vehicles with more than one person. This is a change from the June 3 Revisions, which required employers to provide respirators to all unvaccinated workers, regardless of an employee request.
It is expected that the Board will adopt the June 17 Revisions at its meeting this week and that the revised Cal/OSHA rules could go into effect immediately under a forthcoming order from Governor Newsom.
Key Issues for Employers
There are several key issues employers should consider as they await the adoption of the June 17 Revisions.
- Documentation of Vaccination Status
The June 17 Revisions define “fully vaccinated” to mean that “the employer has documented that 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.” (Emphasis added.) Thus, to allow fully vaccinated employees to forgo face coverings, employers must “document” that those employees have been fully vaccinated.
Although the June 17 Revisions do not specify what documentation is required, Cal/OSHA recently updated its FAQs page6 to confirm that employers have the discretion to implement any documentation method, including self-attestation (for example, the form provided by Santa Clara County, California7) or proof of vaccination (for example through review or collection of a copy or photo of an employee’s CDC vaccine card). Importantly, employers must keep any documentation confidential.
Employers should also note that the June 17 Revisions include among the “fully vaccinated” individuals who received an FDA-approved vaccine or one with emergency use authorization from the FDA, as well as, “for persons fully vaccinated outside the United States,” a vaccine listed for emergency use by the World Health Organization.
- Recordkeeping and Privacy Concerns
Documenting an employee’s vaccination status may raise additional concerns, including recordkeeping considerations. For example, if an employer requires proof of vaccination, these vaccination records may be considered OSHA “employee medical records” in some situations, triggering both confidentiality and retention requirements. Under the OSH Act, medical records must be maintained for the duration of employment plus 30 years. Additionally, documenting vaccination status may also raise broader concerns about employee privacy and medical records.
Employers will need to decide who will have access to these records and how to store them confidentially. Relatedly, an additional concern is how much information an employer should request when inquiring about vaccination status. For example, if an employee did not receive a vaccination, asking follow-up questions about why could elicit disability-related information implicating the Americans with Disabilities Act.
- Distinguishing Between Vaccinated and Unvaccinated Employees
The updated CDC guidance, CDPH guidance, and proposed Cal/OSHA ETS all distinguish protocol for vaccinated employees from protocol for unvaccinated employees. Because vaccination status itself is not a protected category under federal or state anti-discrimination law, employers can lawfully make distinctions based on such status. However, consistent with guidance from both the federal Equal Employment Opportunity Commission (“EEOC”) and California’s Department of Fair Employment and Housing (“DFEH”), employers continue to be required to reasonably accommodate employees’ known disabilities. This means employers may need to consider alternative mitigation measures for unvaccinated employee who cannot wear a face covering due to a medical condition, such as allowing the employee to wear a face shield with a drape or providing the employee with a private office or isolated work area. Beyond managing such legal complexities, employers will also want to be prepared to deftly navigate the concerns of both vaccinated and unvaccinated employees as they return to their workplaces.
Cal/OSHA appears primed to adopt the June 17 Revisions, permitting fully vaccinated individuals to forgo masks in the workplace, which would be a significant change from the current ETS.8 WilmerHale attorneys will continue to closely monitor this evolving development and to watch for future guidance on the related documentation and recordkeeping issues.
California Department of Public Health Guidance for the Use of Face Coverings, effective June 15, 2021. CDPH provides that masks are not required for fully vaccinated individuals, except in the following settings where masks are required for everyone, regardless of vaccination status:
- On public transit (examples: airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares) and in transportation hubs (examples: airport, bus terminal, marina, train station, seaport or other port, subway station, or any other area that provides transportation);
- Indoors in K-12 schools, childcare and other youth settings;
- Healthcare settings (including long term care facilities);
- State and local correctional facilities and detention centers; and
- Homeless shelters, emergency shelters and cooling centers.
At the federal level, the Occupational Safety and Health Administration (“OSHA”) recently issued a COVID Healthcare Emergency Temporary Standard limited to certain healthcare facilities. 29 CFR 1910, Subpart U. OSHA updated its workplace guidance in a number of respects, but the long-awaited general industry COVID Emergency Temporary Standards ETS have not been issued.