Take 3! Cal/OSHA ETS Revisions Still Pending

Seyfarth Synopsis: Less than a week after the Cal/OSHA Standards Board voted to approve Cal/OSHA’s controversial revisions to the COVID-19 Emergency Temporary Standard (ETS), it convened an emergency meeting on June 9, 2021, after which it voted unanimously to pull back the revision. The Board will now send the ETS back for another do-over, to align a new revision with the CDPH and CDC guidance, particularly as it relates to vaccinated individuals.

Background

The story of the Cal/OSHA ETS becomes more convoluted by the day. Those of you following from home will recall that one week ago, on June 3, 2021, the Cal/OSHA Standards Board voted to approve a highly controversial revision to the COVID-19 ETS.

But that approved revision did not align with existing CDC guidance, or the recently updated CDPH guidance and California state rules slated to become effective June 15, 2021 (California’s “reopening”), which will permit fully vaccinated individuals to stop wearing masks in most situations. Let’s just say the regulated community was not pleased with the Board’s revision.

Fast forward to June 8, 2021, when the Board noticed an emergency meeting to be held on June 9, 2021. That meeting, attended by representatives of  widely ranging interests—employers, employees, industry groups, organized labor groups, healthcare professionals, and members of the public at large—lasted 4.5 hours. Virtually every comment criticized the Board for deviating from the guidance of public health authorities.

At the end of the meeting, the Board voted unanimously to pull back the revised ETS, which would have gone into effect on or about June 13, 2021, and sent the ETS back for re-write. We expect yet another revision in the coming days—one aligning more closely the with CDC and CDPH. The Board is expected to vote on this forthcoming version at its June 17, 2021 meeting. If approved, the revision would go into effect around June 28, 2021.

What Does This Mean?

For now, employers must continue to follow the current (“old”) version of the November 2020 ETS, which requires all employees regardless of vaccination status to remain socially distanced and wear masks at nearly all times. We previously blogged about the detailed requirements of the ETS here.

In the near future, sometime after the June 17, 2021 meeting (with the caveat that one can really never know with Cal/OSHA), we expect that fully vaccinated employees in California will not need to wear a mask or socially distance, even if in the company of unvaccinated individuals. This relaxation of the current requirements is expected to become effective on about June 28, 2021.

Other provisions of Cal/OSHA’s controversial revised ETS, however, are expected to stick. One is the requirement that employers provide respiratory protection for voluntary use to all unvaccinated employees.

Keep in mind that the California “reopening” remains on target for June 15, 2021. This means that, unless Cal/OSHA announces it will be exercising enforcement discretion, all employees will still need to be in masks and distanced until the new revision becomes effective, even though the vaccinated general public won’t be required to wear them.

What Else Should I Know?

At the June 9 meeting, the Board indicated that Cal/OSHA should clarify the documentation requirement around vaccination status as proposed in the most recent revised ETS. At this time, it appears unlikely that self-attestation regarding vaccination status will be acceptable, meaning that some sort of documentation (although it is not clear what) will be required.

Workplace Solutions

Stay tuned for the rapid fire developments on the workplace safety front in California. If you are facing difficult questions from your employees in this space that you need help answering, please don’t hesitate to reach out to one of the authors of this post or a member of our Workplace Safety team.

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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