Hurry Up and Wait! Cal/OSHA Hits Pause on Emergency Temporary Standards for COVID-19 Prevention

Newmeyer Dillion
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Employers scrambling to prepare for the June 15th Reopening announced by Governor Newsom have spent the last week pouring over the revised Emergency Temporary Standards for COVID-19 Prevention (“Revised ETS”) approved by the Cal/OSHA Standards Board on June 3, 2021. After last night’s meeting of the Standards Board, however, it’s time to hit pause.

Last night, the Cal OSHA Standards Board held a specialty meeting to reconsider its Revised ETS in light of the latest guidance on face coverings issued by the California Department of Public Health (“CDPH”) on June 7, 2021. Following a presentation by the CDPH and extensive public comment, the Cal OSHA Standards Board voted unanimously to withdraw the Revised ETS and to take up the issue again at its next scheduled meeting on June 17, 2021. The net result in the interim is that California employers who intend to reopen on June 15 must initially comply with all of the requirements of the Cal/OSHA Standards Board Emergency Temporary Standards for COVID-19 Prevention as originally issued on November 20, 2020, including but not limited to, its social distancing, physical partitioning and mask wearing requirements.

The CDPH’s latest guidance on June 7, 2021, articulates an intention to align with new guidance regarding vaccinations and face coverings issued by the Centers for Disease Control (“CDC”) on May 28, 2021. Specifically, the CDPH now recommends that fully vaccinated Californians should no longer be required to wear face coverings in public settings, with limited exceptions for healthcare, long-term care, public transit, and sheltering operations. Additionally, the CDPH has aligned its face covering guidance with the CDC’s by continuing to recommend face coverings for all unvaccinated individuals in all indoor public settings and businesses.

At its meeting on June 17, the Cal OSHA Standards Board is likely to approve a new version of the ETS that incorporates the relevant provisions of the recent CDPH guidance. If the Standards Board approves a revised ETS on June 17, however, it will not become effective until the required ten calendar days have passed for the Office of Administrative Law to approve the new regulation (i.e., it will not become effective until likely June 28, 2021, at the earliest). The November 2020 version of the ETS (requiring social distancing, barriers, face masks, screening, and training) will remain in effect until that time.

What Should Employers Expect In The Next Few Weeks?

  • Absent an Executive Order from the Governor, continuation of the November ETS in its entirety through at least June 27, 2021.
  • Cal OSHA revision to the ETS based on the updated CDPH COVID-19 Mask Guidance and letter to the Cal/OSHA Standards Board.
  • A revised ETS to become effective likely on June 28, 2021, at the earliest.

What Do Employers Do For Now?

  • Employers who intend to reopen on June 15th must put the Revised ETS and protocols on hold for now and revert back to the November 20, 2020 Cal/OSHA Standards Board Emergency Temporary Standards for COVID-19 Prevention, that requires social distancing, barriers, and face masks to be worn by all employees (regardless of vaccination status) who are not socially distanced. The November ETS will remain in effect until after the Cal OSHA Standards Board meets again on June 17 and approves revisions to the ETS, and until the required ten calendar days have passed for the Office of Administrative Law to approve them (i.e., through likely June 27, 2021, at the earliest).
  • Employers who prefer to reopen only after the Revised ETS has been issued and becomes effective, and thereby avoid being subject to the more restrictive November 20, 2020 Cal/OSHA Standards Board Emergency Temporary Standards for COVID-19 Prevention requirements, should delay reopening until June 28, 2021, at the earliest.

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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