Third Time is the Charm: CAL/OSHA Approves Significant Revisions to ETS

Stradling Yocca Carlson & Rauth
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Stradling Yocca Carlson & Rauth

Yesterday, the Cal/OSHA Standards Board approved several significant changes to the Emergency Temporary Standards (“ETS”) that relax protocols for vaccinated employees, revise face covering requirements, and remove physical distancing standards. By the Governor’s Executive Order, these changes are effective immediately.

WHAT ARE THE SIGNIFICANT REVISIONS?

Face Coverings – Being Vaccinated Matters: Under the revised ETS, fully vaccinated employees are exempt from masking even if there are unvaccinated employees present. However, these employees can opt to continue wearing a face covering and cannot be discriminated against for doing so as long as wearing a face covering could not create a safety hazard such as interfering with the safe operation of equipment.

Employees who are not fully vaccinated will still be required to wear face coverings while indoors or in vehicles, subject to the following exceptions:

  1. When the employee is alone in a room or vehicle;
  2. While eating or drinking at the workplace, provided employees are at least 6 feet apart and outside air supply to the area, if indoors has been maximized to the extent feasible;
  3. While performing specific tasks that cannot feasibly be performed with a face covering; or
  4. When the employee cannot wear a face covering due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person. However, if their condition or disability permits it, these employees must wear an effective non-restrictive alternative, such as a face shield with a drape at the bottom.
  5. Employees covered under “3” or “4,” who does not wear a non-restrictive alternative must remain at least 6 feet apart from all other persons unless the other employee is fully vaccinated or tested at least weekly for COVID-19 during paid time and at no cost to the employee.

While not addressed in the ETS, a further exception exists if an unvaccinated employee has a sincerely held religious belief that prevents them from wearing a mask. In that case the employer must explore reasonable alternatives such as wearing a less restrictive alternative like a face shield with a drape. Additionally, naturally immunized workers (discussed below) are not exempted from the face covering requirements.

The new ETS provisions also refines the definition of “face covering” to exclude “a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric,” and specifies the face covering must be a medical, surgical, or two fabric layer mask, or respirator (e.g., N95 mask)—meaning some of the more fashionable masks that employees may have personally purchased and been using will no longer be sufficient to meet the safety standard.

Finally, employers must provide face coverings and ensure they are worn when required by the ETS or California Department of Health (CDPH) orders. The current CDPH guidance regarding the use of face coverings can be found here. Employers must provide compliant face coverings upon request, regardless of vaccination status. Additionally, employers must provide N95 masks to unvaccinated employees upon the employee’s request if they are working indoors or traveling in vehicles with more than one person. Cal/OSHA’s proposed FAQs also state that it is a best practice to replace the N95 mask every shift. Employers may wish to order N95 masks now to ensure they have enough on hand to meet employee demands. However, if a large percentage of your workforce is vaccinated or works outdoors the need is less urgent. In the event an employer runs out of N95 masks to provide to employees, Cal/OSHA has indicated in proposed FAQs that it will consider the employer’s good faith attempts to order masks for employees before issuing any citations.

These standards do not apply to healthcare personnel (HCP) where masks are still required by the California Department of Public Health regardless of vaccination status. Fully vaccinated HCP do get a bit of a break as the CDPH states: “In general, fully vaccinated HCP should continue to wear source control while at work. However, fully vaccinated HCP could dine and socialize together in break rooms and conduct in- person meetings without source control or physical distancing. If unvaccinated HCP are present, everyone should wear source control and unvaccinated HCP should physically distance from others.” Additionally, federal OSHA recently released its Emergency Temporary Standards which requires healthcare employers to provide facemasks and ensure they are worn employees when working indoors. (HCP refers to all paid and unpaid persons serving in healthcare settings who have the potential for direct or indirect exposure to patients or infectious materials, including body substances, contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air. HCP include, but are not limited to, emergency medical service personnel, nurses, nursing assistants, home healthcare personnel, physicians, technicians, therapists, phlebotomists, pharmacists, students and trainees, contractual staff not employed by the healthcare facility, and persons not directly involved in patient care, but who could be exposed to infectious agents that can be transmitted in the healthcare setting).

Under the current CDPH guidance, if clients, customers, vendors, or other third parties enter the workplace and are unvaccinated they would have to wear a face covering. You should consult with your legal counsel regarding procedures you can enact with respect to this requirement.

Vaccination Documentation: In order to take advantage of the provisions in the revised ETS regarding vaccinated employees, per the definition of “fully vaccinated” the employer is required to have documentation of vaccinations.

The revised ETS does not specify how to obtain vaccine documentation or what documentation employers may ask for. However, Cal/OSHA has released proposed revised FAQs which indicate that a copy of the employee’s vaccine card or a completed self-attestation are appropriate documentation for this purpose. With respect to a vaccine card, the employer can maintain a copy of the card or maintain a record that indicates that the employer reviewed the employee’s vaccination card or a copy of the card. Regardless, such documentation should be kept confidential, on a need to know basis, and separate from other personnel records. While the ETS does not include any requirement on how long to keep these records, it is recommended that they be kept at least as long as the ETS is in effect. Additionally, if an employee declines to provide their vaccination status, they will be treated as unvaccinated for purposes of the ETS.

Employers should also be weary to not ask for more information than is necessary, as those questions may run afoul of ADA and EEO restrictions. Information obtained regarding vaccination should be limited to the employees name and proof of vaccination.

Physical Distancing Requirement Removed: Physical distancing requirements are eliminated by the revised ETS with limited exceptions such as those discussed in connection with face coverings. This change appears to signal Cal/OSHA’s intent to have all employees either fully vaccinated or using respirators (e.g., N95 masks) on a voluntary basis. Realistically, not all employees at the worksite will be fully vaccinated, and even those provided N95 masks can still refuse them. Given the practical challenges in ensuring 100% vaccination and/or respirator use, employers unable to achieve these milestones may consider continuing to enforce physical distancing for unvaccinated employees as a means of limiting COVID-19 exposures in the workplace.

Exclusion From The Workplace: The revised ETS creates broad exemptions for workers who have been fully vaccinated with an FDA approved or emergency use authorized (“EUA”) vaccine (right now the Pfizer, Moderna and J&J vaccines). Additionally, employees working internationally who received a World Health Organization approved or EUA vaccine may also be considered fully vaccinated. Workers who have tested positive for COVID-19 within the past 90 days and remained symptom free since returning to work (“naturally immune workers”) are also excepted from the exclusion requirement. Fully vaccinated means two weeks have elapsed since the last dose of the vaccine. Fully vaccinated or naturally immune workers would not need to be excluded from work after a close contact at the workplace with a COVID-19 case so long as they remain symptom-free. However, fully vaccinated and naturally immune workers who develop symptoms or test positive must still be excluded for 10 days even if asymptomatic.

Under the prior version of the ETS, employees had to be excluded from the workplace if they were a COVID-19 case or came in close contact with a COVID-19 case during the high risk exposure period. A COVID-19 case is a person who has tested positive, been diagnosed with COVID-19, was ordered to isolate, or has died due to COVID-19. A close contact means being within 6 feet of a COVID-19 case for more than 15 minutes in a 24 hour period. The high risk exposure period is two days before the COVID-19 case tested positive or exhibited symptoms of COVID-19 until they meet the requirements to return to work.

The revised ETS adds an additional alternative for a “close contact” who developed symptoms to return to the workplace. If an employee is a close contact and developed symptoms, they can return to work if they test negative using a polymerase chain reaction (PCR) test taken after symptoms appeared, at least ten days have passed since the close contact, and the person has been symptom free for 24 hours. Previously, these employees could not return to work until at least 10 days after the symptoms appeared. So in the case of an employee who had a close contact and developed symptoms several days later, they can now return to work if they meet the three criteria listed above, which could result in a shorter exclusion period.

The revised ETS also includes an exemption for healthcare facilities during critical staffing shortages if there is not enough staff to provide safe patient care. In these cases, close contacts who did not develop symptoms may return after 7 days if they receive a negative PCR test taken 5 days after the close contact.

Employer Provided Testing: Under the revised ETS, employers are no longer required to offer COVID-19 testing to workplace close contacts if the exposed employees remain asymptomatic and were fully vaccinated or are naturally immune. However, the revised ETS requires employers to make testing available to all unvaccinated employees exhibiting COVID-19 symptoms. Under the prior version of the ETS an employer only had to provide testing to any employee who had a close contact with a COVID-19 case. This broader application of testing requirements is yet another incentive to having vaccinated employees. As with the prior version of the ETS, testing costs must still be paid by the employer.

New Outbreak Standards: Under the prior version of the ETS, employers had to offer weekly testing to employees at an “exposed worksite.” The revisions to the ETS eliminate the term “exposed worksite” and replace it with the term “exposed group.” Exposed group encompasses all persons at a work location, working area, or a common area at work, where the people present included a COVID-19 case (except for short passing through while masked) at any time during the high-risk exposure period. This includes common areas like bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. However, employees who are part of a distinct group, like a shift that does not overlap with another, would be considered a separate exposed group even if a second shift later worked in the same location. Additionally, fully vaccinated and naturally immune workers who remain asymptomatic are not included in the exposed group for testing purposes.

For minor outbreaks, testing would kick in when there are three or more COVID-19 cases in an exposed group in a 14 day period. Employers must then test all unvaccinated or non-naturally immune workers weekly. The revised ETS adds a face covering requirement for all employees in the exposed group when working indoors or outdoors within six feet of another person, regardless of vaccination status. The only exceptions are those listed for unvaccinated workers in the Face Covering section above.

Employers must also ensure that air filters used at the worksite have a Minimum Efficiency Reporting Value (MERV) of 13 or higher.

There are additional testing requirements in cases of major outbreaks (20 or more COVID-19 cases in an exposed group in a 30 day period). If this occurs, then all employees in the exposed group must be tested twice weekly regardless of vaccination status. Additionally, the employer must provide N95 masks to all employees in the exposed group for voluntary use. The face covering requirement for regular outbreaks still applies here. Additionally, employers must re-implement all physical distancing requirements and non-permeable partitions for employees not wearing N95 masks.

The revised ETS also states that a major outbreak ends when there are fewer than 3 COVID-19 cases in a 14 day period. The previous version of the ETS required no new cases in a 14 day period for a major outbreak to end.

WHAT ARE THE OTHER REVISIONS?

Training Requirements: The revised ETS adds required training topics including information on COVID-19 vaccinations, COVID-19 testing accessibility, and for employers who provide respirators for voluntary use, training on how to properly wear the respirator and how to perform a seal check. Additionally, employers would need to train employees that N95 masks and other respirators protect users from airborne diseases like COVID-19, as opposed to face coverings which primarily protect people around the user. We expect that the Department of Industrial Relations will update its model training to include these topics.

Notification After COVID-19 Case at the Worksite: The revised ETS adds and clarifies several of the requirements around COVID-19 notifications to align with previous legislation, including but not limited to, a requirement that COVID-19 notifications include the employer’s disinfection plan. Verbal notice of a COVID-19 case in the workplace is also required if the employer has reason to know that an employee has not received the written notice. This is an important change for many employers who have had difficulty complying with existing written notification requirements. The revised ETS also require that any verbal notification be provided in a language understandable by the employee. (Employees are required to provide the written notification in both English and in the language understood by a majority of employees).

Additionally, the notice requirement now kicks in if the employer knew or should have known that a COVID-19 case visited the worksite. Previously the requirement only applied if the employer actually knew that a COVID-19 case visited the worksite. In doing so, Cal/OSHA is signaling that employers should be vigilant in determining when employees and visitors are exhibiting COVID-19 symptoms and should have methods in place for employees to easily report symptoms and COVID-19 cases.

Engineering Controls: The existing version of the ETS requires “cleanable solid partitions” when employees are assigned to work at work stations such as cash registers, desks, production lines, and other locations where physical distancing is not maintained at all times. The revised ETS ends the requirement for these “solid cleanable partitions.”

Exclusion Pay: Under the revised ETS, employers must pay all excluded employees their full wages at the employee’s regular rate and maintain all benefits as if the employer had not excluded them. The revised ETS also provides that this exclusion pay must be paid no later than the next regular pay date after the pay period(s) in which the employee is excluded. Exclusion pay is not required “where the employee received disability payments or was covered by workers’ compensation and received temporary disability.” Nor is it required when the employer can demonstrate the close contact was not work related. In this regard it is important for employers to contact their workers compensation carrier when an employee needs to be excluded from the workplace under the ETS. They should be able to help you determine whether the exposure was work related because they need to make a similar determination to establish whether the matter will be covered by workers’ compensation.

The revised ETS eliminates the exception in the current ETS stating that exclusion pay is not required when the excluded employee is not “otherwise able and available to work.” Therefore, under the revised ETS, even if an excluded employee is not able to work – due to severe COVID symptoms or otherwise – the revised ETS still requires that the employer provide exclusion pay unless they meet one of the other stated exceptions.

Vaccine Verification Not Required: The ETS revisions do not require blanket vaccine-verification, of employees or third parties, along the lines of the onerous requirements in Santa Clara County. Instead, verification is necessary if the employer or employee is to take advantage of the ETS provisions relating to vaccinated employees.

Adds Definition of Close Contact: The previous ETS used the term “potential exposure” which has been replaced with the more generally used term “close contact.” Additionally, the revised ETS exempts employees from being considered a close contact if they were wearing an N95 masks whenever they were within six feet of the COVID-19 case.

While the revised ETS does not require it, an employer can require employees to wear N95 masks. The employer would have to provide the masks or reimburse employees who purchased them and any such requirement would be subject to any requests for religious or disability related accommodations.

Adds Definition of Worksite From FAQs: The revised ETS incorporates the definition of “worksite” that was released in an FAQ to address employer confusion after the previous version of the ETS failed to define the term. Under the revised ETS “worksite” means “the building, store, facility, agricultural field, or other location where a COVID-19 case was present during the high-risk exposure period. It does not apply to buildings, floors, or other locations of the employer that a COVID-19 case did not enter.” The term worksite is essential in determining who is subject to the notice requirements discussed above.

Reporting Serious Illnesses And Deaths: The revised ETS no longer requires employers to report COVID-19 related serious illnesses and deaths occurring at work to Cal/OSHA.

VACCINATION REQUIREMENTS – UNANSWERED QUESTION

While an employer can verify which employees are fully vaccinated, the most significant question left unanswered by the new guidance is, as a practical matter, how can managers or co-workers know who is vaccinated so that they can enforce the revised ETS masking requirements for unvaccinated employees. There are several options and each has some risk. Which option to use depends on the specific employer and their risk tolerance.

One option is to only allow vaccinated employees in the workplace. This is tantamount to a mandatory vaccination policy and may require employers to terminate employees who cannot work remotely. This option also requires that the accommodation process be followed for employees who cannot receive the vaccine due to a religious or disability based exemption as those employees otherwise would not be afforded the same employment opportunities as other employees. Another option is to appoint someone in the office, ideally someone in HR, who knows employees’ vaccination status and can act as a “hall monitor” to ensure that non-vaccinated people are wearing their masks. An additional option for some employers may be to separate vaccinated and non-vaccinated employees into different work groups to make enforcement easier.

Importantly, any method of identifying which employees are fully vaccinated risks unlawful discrimination or harassment of unvaccinated employees by co-workers or managers.

These options are by no means the only ones available. Because of the risks involved, we suggest reaching out to legal counsel if an employer is considering a mandatory vaccination policy or a policy aimed at identifying which employees are vaccinated.

EXECUTIVE BRIEFING

Because of the significant effect these new regulations likely have on workplace protocols and operations, on June 22nd from 12:00-1:30 pm we will be holding a Zoom briefing on the revised Cal/OSHA’s ETS and practical guidance on how to comply with these new standards. The presentation will also include a brief question and answer session for attendees.

Attendance is free for Stradling clients. Others are welcome to attend for a fee of $95.

You may register for the presentation here.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.

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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