Following the lead of the National Institute of Health (NIH), Cal/OSHA has promulgated new and modified emergency temporary standards for employers in response to the COVID-19 crisis. On June 3, 2021, the Occupational Safety and Health Standards Board readopted Cal/OSHA’s COVID-19 prevention emergency temporary standards and adopted revised standards. The revised standards reflect the easing of employer restrictions.
These updated standards are expected to go into effect on June 15, 2021 if approved by the Office of Administrative Law. They apply to most workers in California not covered by Cal/OSHA's standard for aerosol transmissible diseases. Please note, the term “vaccinated” applies to persons that are fully vaccinated depending on regimen of their vaccination. The issues regarding boosters will be addressed by later NIH determinations. Other noteworthy revisions include:
All employers are still required to maintain an “Injury and Illness Prevention Plan”. As part of that plan, employers must review the California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments. Employers will also be required to include information in their prevention training on how vaccines are effective at preventing transmission of COVID-19 and serious illness or death.
The criticality of implementing these revised emergency temporary standards cannot be understated. Existing policies and procedures should be reevaluated to confirm that they comply with Cal/OSHA’s revisions. The failure to do so on the part of the employer may expose the employer to a potential serious and willful claim, and citations from Cal/OSHA.
Although the revised standards reflect an easing of some workplace restrictions, they also create new burdens for California employers. It appears that employees must still wear masks for the foreseeable future (unless everyone in a given room is fully vaccinated). Employers must track workers’ vaccinations status and procure N95s. With health care workers in need of N95s and with California’s wildfire season approaching its peak, the cost of N95s will burden smaller employers. While Governor Newsom has the power to overrule the agency with an executive order, he does not appear poised to do so.
While these Cal/OSHA standards relax some of the requirements for employers, it should be noted that Cal/OSHA has no bearing whatsoever on liability for workers’ compensation claims. The presumptions that are in place pursuant to Labor Code sections 3212.87 and 3212.88 remain in effect until January 1, 2023. Recall one of the methods to rebut the presumption is based on measures the employer implemented to reduce potential transmission of COVID-19 in the workplace. Employers should remain very cautious. A policy that requires use of a mask in all common areas, regardless of vaccination status, is certainly a “measure to reduce potential transmission."