It’s Official—Vaccinated California Workers Can Go Mask-Free at the Office

Manatt, Phelps & Phillips, LLP
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As California announced its official statewide reopening on June 15, 2021, employers remained in the dark awaiting an official announcement from Cal/OSHA on new face-covering guidance. While initially proposing requirements that all workers—whether vaccinated or not—must continue to wear face coverings at work, the California Occupational Safety and Health Standards Board changed course on June 17, and has now officially approved revised Emergency Temporary Standards allowing vaccinated workers to go mask-free at the office. Governor Newsom has issued an executive order implementing these new standards effective immediately.

The approval on June 17, 2021, of new Emergency Temporary Standards makes some substantial changes to prior COVID-19 workplace protocols, while leaving many of the prior protocols in place.

Key protocol changes include:

  • Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document these employees’ vaccination status.
    • If a COVID-19 outbreak occurs at work, face coverings must be worn by all employees.
    • Documenting vaccination status means (1) employees provide proof of vaccination (e.g., vaccine card) and employer maintains a copy; (2) employees provide proof of vaccination and employer maintains a record of which employees provided proof, without keeping a copy; or (3) employees self-attest to vaccination status and employer keeps a record of who has self-attested.
    • If an employee declines to state their vaccination status, the employee must be treated as unvaccinated (but the employer may not take any disciplinary action against or otherwise discriminate against the employee for refusing to share their vaccination status).
  • Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases.
  • There are no face-covering requirements outdoors for any employees (except during outbreaks) regardless of vaccination status.
  • Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors, when driving in a vehicle with others or upon request (make sure you have enough of these on hand; in case of a major outbreak, these must be provided to all employees regardless of vaccination status and without waiting for a request from the employee).
  • Employers may not retaliate against any employee who chooses to wear a face mask, even if it is not required.
  • Employers must offer testing to symptomatic unvaccinated employees at no cost to those employees and during paid time, regardless of whether there is a known exposure.
    • Tests must also be offered at no cost and during paid time to unvaccinated employees after an exposure, to vaccinated employees after an exposure if they develop symptoms, to unvaccinated employees in an outbreak and to all employees in a major outbreak.
  • There are no more physical distancing requirements or barrier requirements at work (except during outbreaks).
  • The phrase “exposed group” replaces “exposed workplace” for COVID-19 workplace exposures.
    • This change is significant for employers with large workplaces in a single facility.
    • “Exposed group” is defined as “all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period.” This new definition will determine the scope and extent of the employer’s obligations to investigate, contact trace, notify, report, maintain records of outbreaks, etc.
  • Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air-cleaning systems.

The new protocols do not change the following COVID-19 protocols, all of which still apply:

  • Employers must maintain a written COVID-19 Prevention Program.
  • Employers must provide effective training to employees on the employer’s COVID-19 Prevention Program and employees’ rights under the Emergency Temporary Standards.
  • Employers must provide notification to public health departments of any outbreaks.
  • Employers must provide notification to employees of exposures and close contacts.
  • Employers must offer testing to employees after potential exposures (with the exception of vaccinated workers after an exposure if they do not develop symptoms).
  • Employers must continue to abide by quarantine and exclusion pay requirements for employees who need to miss work due to exposure, symptoms, etc.

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