New Cal/OSHA COVID-19 Standards Relax Workplace Restrictions

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On June 17, 2021, Cal/OSHA adopted revised COVID-19 Prevention Emergency Temporary Standards, relaxing many of the previous COVID-19 requirements for employers in light of the growing number of vaccinated individuals in the state. The new standards go into effect immediately and apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.

Face Coverings and Respirators

Fully vaccinated employees, documented by the employer, do not have to wear face coverings in indoor workspaces except:

  • If the worker is subject to Cal/OSHA respiratory protection requirements;
  • When a COVID-19 outbreak occurs in the employer’s offices, which means three or more employees test positive for COVID-19 within a 14-day period; or
  • Where the vaccinated employee is conducting COVID-19 screening for other employees at the workplace.

Unvaccinated employees are required by the new standards to wear face coverings in indoor workspaces except:

  • When alone in a room;
  • When eating or drinking and at least six feet apart from others;
  • When actually performing specific tasks which cannot feasibly be performed with a face covering, but only when at least six feet apart from others; and
  • When an ADA accommodation is needed, although employees must wear an effective non-restrictive alternative, such as a face shield with a drape on the bottom, if their condition or disability permits it.

Regardless of vaccination status, no employee needs to wear face coverings when working outside, although the standards call for training employees that face coverings are recommended outdoors for people who are not fully vaccinated when they are not socially distanced.

The new standards state, however, that face coverings should be provided to employees in the workplace upon request or if there is a major outbreak, regardless of vaccination status. The standards also indicate that respirators should be provided to unvaccinated employees who work indoors or in vehicles, and respirators should be provided to any employee regardless of vaccinated status during an outbreak, upon request by, and at no cost to the employee.

The standards permit employees to select and purchase their own respirators as long as the employer reimburses the employee for such costs in a timely manner. Employers who provide respirators should also remain mindful of Cal/OSHA’s Respiratory Protection standards.

Employers should also continue to allow employees to voluntarily choose to wear face coverings at work. The new standards prohibit employers from retaliating against employees for wearing or requesting face coverings or respirators.

Nothing in the new standards prevents employers from requiring all employees to wear a face covering in lieu of documentation.

Social Distancing and Hazard Controls

Social distancing at work is no longer required by Cal/OSHA’s standards except:

  • When the employer identifies a particular hazard; or
  • During an outbreak.

Pursuant to the new standards, employers should nevertheless assess workplace hazards and implement controls to prevent transmission of disease such as social distancing and physical barriers to the extent a particular hazard may warrant such additional measures. Cal/OSHA standards also state that physical distancing and barriers should be used in a major outbreak (20 or more cases within a 30-day period) for all employees, regardless of vaccination status.

Testing

Under the new standards, COVID-19 testing should be offered at no cost while the employee is on paid time in the following circumstances:

  • For unvaccinated employees who become symptomatic;
  • For unvaccinated employees who are exposed to COVID-19;
  • For vaccinated employees who become symptomatic after an exposure;
  • For unvaccinated employees during an outbreak (three or more cases in an exposed workgroup in a 14-day period); and
  • For all employees during a major outbreak (20 or more cases within a 30-day period).

Documenting Vaccinations

Notably, the new standards do not specify a particular method for documenting vaccination status. Instead, the standards only require that the method is effective.  Cal/OSHA FAQs identify the following as acceptable options for confirming vaccinated status:

  1. Require employees to provide proof of vaccination, including a vaccine card or health care document.  Under this method, the employer may either retain a copy of the card or documentation or record that the employee showed the card or documentation to the employer.
  2. Allow employees to self-attest to their vaccination status and maintain a record of the attestation.

Under either of these methods, employers likely will need to treat the information as confidential medical information and keep it separate from the employee personnel files. If an employee declines to prove or attest to their vaccination status, the standards indicate that the employer should treat the employee as unvaccinated.

Additional Resources and Guidance

Cal/OSHA has also provided an employer fact sheet and FAQ to assist employers with understanding these new standards. Cal/OSHA is also working on related revisions to its model COVID-19 Prevention Program and other informational materials.

[View source.]

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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