Pillsbury Winthrop Shaw Pittman LLP

Regardless of vaccination status, physical distancing could be required in California indoor workplaces until July 31, 2021.

TAKEAWAYS

  • If proposed revisions are approved, California employers must provide respirators such as N95 masks to unvaccinated employees for voluntary use starting on July 31, 2021.
  • If proposed revisions are approved, California employers must ensure employees working indoors or at “outdoor mega events” are physically distanced or wearing respirators until July 31, 2021.
  • If proposed revisions are approved, fully vaccinated employees are exempt from face covering requirements when outdoors and asymptomatic.

As previously alerted, the California Occupational Safety and Health Administration (Cal/OSHA) recently proposed revisions to its COVID-19 Prevention Emergency Temporary Standards (ETS), which were to be considered by the Occupational Safety and Health Standards Board (Board) on May 20, 2021. However, on the eve of the meeting, Cal/OSHA issued a memorandum to the Board, requesting the Board not vote on the proposed revisions and allow Cal/OSHA to present a new proposal at a future meeting. On May 28, 2021, Cal/OSHA published an updated version of the proposed revisions, which will be the subject of public comment, Board discussion, and a Board vote on June 3, 2021.

Notably, the updated proposed revisions will not be on the same schedule as Governor Newsom’s June 15 reopening guidelines. Instead, the proposed revisions will leave physical distancing requirements in place until July 31, 2021. Specifically, if the revisions are approved on June 3, employees working indoors or at “outdoor mega events” (“an event that includes over 10,000 participants or spectators outdoors”) must maintain six feet of physical distancing, unless they are wearing respirators, until July 31. Then, starting on July 31, Cal/OSHA will require employers to provide respirators (“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”) for voluntary use to employees who are not fully vaccinated and working indoors or at outdoor mega events. The respirator standards of NIOSH are available at this link.

In addition, the updated proposed revisions differ from the prior draft in that all COVID-19 “cases” (persons who test positive) are excluded from the workplace, regardless of vaccination status. To contrast, in the previous version of the proposed revisions, fully vaccinated employees who tested positive and did not have symptoms were not required to be excluded from work. However, there are no changes to the proposed revisions regarding exclusion of employees who had a close contact (within six feet for a cumulative total of 15 minutes or greater in any 24-hour period) with a person who tested positive: employees who were fully vaccinated before having the close contact, but are asymptomatic, do not need to be excluded from work.

If readopted on June 3, the ETS will remain effective until October 2021, with a possibility of another 90-day extension.

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