On June 17, 2021, the California Occupational Safety & Health Standards (Cal/OSHA) Board voted to re-adopt its COVID-19 prevention emergency temporary standards (ETS) incorporating changes Cal/OSHA noticed on June 11, 2021 (revised ETS).
The revised ETS (which will make changes to California Labor Code Sections 3205 through 3205.4) are aligned with the latest guidance by the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH). The revised ETS are also aligned with Governor Newsom’s guidelines to reopen California as of June 15, 2021. Following Cal/OSHA’s vote, Governor Newsom signed an Executive Order on June 17, 2021, enabling the revised ETS to take effect without the normal 10-day review period by the Office of Administrative Law.
Below is a summary of the notable revisions:
- “Face Coverings”: A single-layered face covering, such as a scarf, ski mask, balaclava, bandana, turtleneck, or collar, do not qualify. What qualifies: a surgical mask, a medical procedure mask, a respirator1 worn voluntarily or a tightly woven fabric or non-woven material of at least two layers. Employers are required to provide face coverings to all employees who are not fully vaccinated (and to vaccinated employees upon request), and ensure they are worn over the nose and mouth when indoors and in vehicles. Under the revised ETS:
- Fully vaccinated employees do not need to wear face coverings except in certain circumstances during outbreaks and as required by the CDPH. Fully vaccinated employees may wear a face covering without fear of retaliation by their employer.
- Employees, regardless of vaccination status, do not need to wear face coverings outdoors. Employers must communicate to employees that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained.
- Employees exempted from wearing face coverings due to a medical condition, mental health condition, or disability shall wear an effective non-restrictive alternative, such as a face shield with a drape on the bottom, if their condition or disability permits it. Further, any employees that are not required to wear face coverings because they qualify for an exemption must be physically distanced unless the unmasked employee is fully vaccinated or tested weekly for COVID-19 during paid time at no cost to the employee.
- Common exceptions to wearing face coverings indoors for unvaccinated persons are: (i) when alone in a room or vehicle; (ii) when eating and drinking; (iii) when an accommodation is required; or (iv) when job duties make a face covering infeasible or create a hazard.
- “Fully vaccinated”: The revised ETS provide that “fully vaccinated” means 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. The ETS leave open the method for employers to document vaccination status but possible methods include maintaining a copy of the employee’s vaccination card, a record that the employee presented proof of vaccination or a record of the employee’s self-attestation. Any record of vaccination must be kept confidential.
- Vaccines must be approved or have emergency use authorization by the FDA or, if vaccinated outside the U.S., listed for emergency use by the World Health Organization (WHO).
- “Close contact”: This term replaces the term for “COVID-19 exposure” but provides the same definition. The revised ETS provide an exception to close contact that “Employees have not had a close contact if they wore a respirator required by the employer whenever they were within six feet of the COVID-19 case during the high-risk exposure period.”
- Access to Respirators: The revised ETS provide that employers must provide respirators to (1) unvaccinated employees working indoors or in vehicles with another person upon request, and (2) any employees for voluntary use (regardless of vaccination status) in the exposed group when there is a major outbreak without waiting for a request from employees.
- Cal/OSHA’s FAQs, which Cal/OSHA posted on June 18, 2021, explain that “[i]nitially, an employer may either stock respirators and offer them to employees or may poll workers to determine which employees wish to be provided a respirator before obtaining them. However, once an employer has established that it has employees who wish to wear respirators, it should have enough on hand of the correct size and type to fulfill reasonably foreseeable requests upon demand. If an employee prefers to select and purchase their own respirator, an employer may permit this alternative, as long as the employer reimburses the employee in timely manner.”
- In addition, “an employer is under a continuing obligation to provide respirators to eligible unvaccinated employees at any time they communicate to the employer their desire to wear one.”
- “Physical Distancing”: The revised ETS remove requirements for physical distancing regardless of employee vaccination status, except: (1) employers must evaluate whether it is necessary to implement physical distancing and barriers/partitions during an outbreak and (2) employers must implement physical distancing and barriers/partitions during a major outbreak.
- Prevention Program: Employers are still required to maintain a written COVID-19 Prevention Program, which may be integrated into the employer’s Injury and Illness Prevention Program required by Labor Code Section 3203 or be maintained in a separate document. But there are some key changes to the requirements, including:
- for indoor spaces, evaluate and determine how to maximize ventilation with outdoor air; the highest level of filtration efficiency compatible with the existing ventilation system, and whether the use of portable or mounted HEPA filtration units, or other air cleaning systems, would reduce the risk of COVID-19;
- review the Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments published by California Department of Public Health;
- as part of COVID-19 prevention training, employers must include information on the proper use of respirators and that employees may use them without fear of retaliation at no cost to the employees; and
- employers must include information regarding the employer’s COVID-19 policies; how to access COVID-19 testing or a COVID-19 vaccine; and the fact that vaccination is effective at preventing COVID-19 and protecting against both transmission and serious illness or death.
- Administrative Controls: While the revised ETS remove the prohibition on sharing workplace materials, employers are still required to implement cleaning and disinfecting procedures, including (1) identifying and regularly cleaning frequently touched surfaces and objects and (2) cleaning of areas, material, and equipment used by a COVID-19 case during the high-risk exposure period, and disinfection if the area, material, or equipment is indoors and will be used by another employee within 24 hours of the COVID-19 case.
- Testing of symptomatic unvaccinated employees. Employers must make COVID-19 testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated during employees’ paid time.
- A COVID-19 case at the place of employment. Employers must make COVID-19 testing available at no cost during paid time to all employees who had a close contact in the workplace and provide them with information on COVID-19 benefits that may be available to them under federal, state, or local law, and information on wage requirements where an employee is excluded from the workplace. Employers are not required to make this testing available for: (1) employees who were fully vaccinated before the close contact and do not have COVID-19 symptoms; and (2) employees who have recovered from COVID-19 and returned to work, and have remained free of COVID-19 symptoms, for 90 days after the initial onset of COVID-19 symptoms or, for COVID-19 cases who never developed symptoms, for 90 days after the first positive test. The revised ETS have additional requirements for testing during multiple COVID-19 infections and outbreaks.
- Exclusions from the Workplace: Employers no longer have to exclude employees that are fully vaccinated or employees who have recovered from COVID-19 and returned to work, and have remained free of COVID-19 symptoms, for 90 days after the initial onset of COVID-19 symptoms or, for COVID-19 cases who never developed symptoms, for 90 days after the first positive test.
- Return to Work after close contact: The revised ETS provide different requirements for returning to work after a close contact depending on whether or not the employee develops symptoms.
- Employee never developed symptoms. Employees may return to work after 10 days with the last known close contact.
- Employee developed symptoms. Employees may return to work after either:
- (1) at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without use of fever-reducing medications; (2) COVID-19 symptoms have improved; and (3) at least 10 days have passed since COVID-19 symptoms first appeared; or
- (1) the person tested negative for COVID-19 using a PCR test with a sample taken after the onset of symptoms; (2) at least 10 days has passed since the last known contact; and (3) the person has been symptom-free for at least 24 hours without the use of fever reducing medicines.
- Enforcement: In its FAQs, Cal/OSHA states that employers should implement the revised ETS “as soon as possible.” For employers who are unable to do so, these employers must implement or retain alternative controls to ensure the health of employees. Further, “[i]f an employer is continuing to comply with the November ETS while implementing the revisions, Cal/OSHA will not cite the employer.”
- With respect to face coverings, Cal/OSHA’s FAQs provide that employers can comply with the revised ETS “by requiring face coverings for all employees while they gather documentation to allow fully vaccinated persons to go without face coverings.”
- If employers are unable to provide NIOSH-approved respirators on the effective date of the ETS revisions, it is particularly important that employers take alternative measures to protect unvaccinated employees until respirators are available.
Finally, the revised ETS include changes to requirements for:
- Multiple COVID-19 Infections and Outbreaks (§ 3205.1), defined as three or more employee COVID-19 cases within an exposed group at the workplace during their high-risk exposure period at any time during a 14-day period;
- Major Outbreaks (§ 3205.2), defined as 20 or more employee COVID-19 cases in an exposed group at the workplace during their high-risk exposure period within a 30-day period;
- Employer-Provided Housing (§ 3205.3); and
- Employer-Provided Transportation (§ 3205.4).
As noted above, Cal/OSHA posted FAQs on June 18, 2021, addressing the revised ETS. Cal/OSHA has also posted an Updated ETS Fact Sheet and has announced that it is updating its model prevention plan and will provide additional information on planned webinars on the revised ETS. Employers should review the revised ETS to ensure compliance.
Faegre Drinker will continue to monitor and provide insights with respect to Cal/OSHA’s revised ETS as well as other COVID-19-related topics.
 “Respirator” means a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.