Will Cal-OSHA’s Third Attempted Revisions to the Emergency Temporary Standards Be A Charm or a Strike-Out?

CDF Labor Law LLP

On Wednesday, June 9, 2021, Cal-OSHA’s Occupational Safety and Health Standards Board held a special meeting to discuss new guidance from the California Department of Public Health as specifically related to face coverings in the workplace.  See June 7 letter by CDPH-Letter (2), letter by Tomas J. Aragon, MD DrPH, Director and State Health Officer of the California Department of Public Health.  At the end of the meeting, the Board elected to withdraw the revisions to the Emergency Temporary Standards (ETS) previously issued on June 3.  Two days later, on the evening of Friday, June 11 Cal-OSHA posted revised ETS.  These are the third revisions to the proposed standards in less than a month.  The board will consider these revisions on June 17 and until then, the original standards adopted in November of 2020 will remain in effect.  Fingers crossed the third time will be a charm for these revisions so the guidelines are clear for California employers on how to proceed with their compliance efforts relating to COVID-19 protocols in the workplace.

Here is what you need to know about the key takeaways from the newly revised standards:

Written Prevention Plans:  The revised standards continue to emphasize the duty of employers to issue written COVID-19 Prevention Programs that include a system for (1) communicating COVID-19 symptoms, close contacts, and potential accommodations for employees with medical or other conditions that put them at increase risk of severe COVID-19 illness; (2) identifying and evaluating COVID-19 hazards; (3) investigating and responding to COVID-19 cases in the workplace; (4) correcting COVID-19 hazards; (5) training and instruction; (6) face coverings; (7) controls and PPE; (8) reporting, recordkeeping and access; (9) exclusion of COVID-19 cases and employees who had a close contact; and (10) return to work criteria.

Physical Distancing:  The revised standards no longer require physical distance between employees in the same work location who are fully-vaccinated.  However, the Board continues to encourage a combination of preventative measures to decrease the spread of COVID-19, including physical distancing, face coverings, increasing ventilation indoors through the use of MERV 13 or higher efficiency air filters and respiratory protection, such as an N95 filtering facepiece respirator.

Face Coverings:  The revised standards provide that employers shall provide face coverings (a surgical mask, a medical procedure mask, a respirator or a woven fabric of at least two layers) to all employees who are not fully-vaccinated and ensure they are worn indoors and in vehicles, unless the employee is alone, eating and able to maintain at least six feet of physical distances or the employee is exempted from wearing a face-covering due to a medical condition.  In such circumstances, the employee shall wear a face shield with a drape on the bottom. Even when face covers are not required, an employer is obligated to provide one, upon request and regardless of vaccination status.  Importantly, fully-vaccinated persons are not required to wear face coverings in the work location, unless there is a major COVID-19 outbreak with 20 or more employee COVID-19 cases (positive test or subject to an isolation order by a health official).

Workplace Exclusion:  The revised standards require workplace exclusion of COVID-19 cases and employees who had a close contact with a person of the virus, unless the employee is fully-vaccinated and does not develop COVID-19 symptoms.  Persons who had close contact may return to work when 10 days have passed since the last known close contact and provided they never developed symptoms or if symptomatic, after a negative COVID-19 test, 10 days since the initial contact, and after being symptom-free for at least 24 hours.  A close contact is generally defined as within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period, and possible COVID-19 hazards at work.

Testing of Employees:  The revised standards require that employers provide COVID-19 testing available at no cost to employees with COVID-19 symptoms who are in close contact, during the employees’ paid time.

Also, an important revision to the definition of “fully-vaccinated” means that 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.  Thus, employers will be required to obtain documentation of vaccination.

The revisions to the standards governing COVID-19 prevention on employer-provided housing were limited.  They include trying to reduce exposure by assigning employees to distinct groups, that remain separate from other groups, and measures to increase workplace ventilation.

We anticipate that the ETS are now positioned to be approved in their current form before the end of the month.  We will continue to keep you apprised of any developments.  

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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