New Cal/OSHA COVID-19 Regulations Are Withdrawn! Cal/OSHA Huddles Over More Revisions.

Fox Rothschild LLP

Fox Rothschild LLP

New Cal/OSHA COVID-19 prevention regulations — set to go into effect no later than June 15 — were withdrawn late Wednesday by the Cal/OSHA Standards Board.  The move took employers who had been preparing for weeks to comply with the new regulatory scheme by surprise.  The Standards Board is expected to vote on adopting a revised version of the new regulations at its June 17 meeting.  If approved on June 17, new regulations will become effective 10 days later.

As of the time of this posting, the new version of Cal/OSHA regulations the Board will consider on June 17 have not been made public.

Until revised regulations are approved by the Standards Board and go into effect, the original COVID-19 Emergency Temporary Standards (ETS) implemented in November 2020 continue in effect.  The original ETS do not distinguish in any respect between vaccinated and unvaccinated employees.  The original ETS have the force of law and are not mere guidance.  The original ETS will remain legally binding despite the statewide “Blueprint for a Safer Economy” expiring in large part on June 15.

The Standards Board yanked back the new COVID-19 regulations this week, at least in part, to relax the extent to which fully vaccinated employees will be required to wear face coverings in the workplace.  On Monday, two days before the Board recalled the new regulations, the California Department of Public Health disclosed to the Board that the Department was preparing to issue new guidance on face coverings and fully vaccinated persons.  The Board withdrew the new regulations, in part, to bring them in line with the Department’s new guidance, including that fully-vaccinated persons generally do not need to wear face coverings.  The Department’s new guidance, now public, is here.

Another issue the Standards Board may address in the version of regulations it considers on June 17 is the extent to which unvaccinated employees may be required to participate in regular COVID-19 testing.  This issue arises due to California Department of Public Health guidance released Monday calling for weekly or biweekly testing of unvaccinated employees in  “high-density workplaces” and sectors including manufacturing, construction, retail, food service and others.  The Department’s June 7 memo is here and is an important read for employers.

We will provide updates and practical guidance as developments around COVID-19 protocols in California continue to unfold.

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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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