Pillsbury Winthrop Shaw Pittman LLP

Workplace safety agencies look to public health recommendations to update their own COVID-19 guidance and standards as they relate to the impact of vaccinations.

TAKEAWAYS

  • Fully vaccinated, asymptomatic employees are no longer required to be quarantined, barred from the workplace, or tested following a COVID-19 exposure.
  • In California, fully vaccinated employees may soon be exempt from face-covering and physical distancing requirements in the workplace.

As COVID-19 cases appear to be on the decline and more people are opting to become vaccinated, public health departments and workplace safety agencies are concurrently updating recommendations and guidance to reflect changes in the course of the pandemic. Although such recommendations and guidance are often in flux, below is a summary of where federal and California workplace safety agencies currently stand on the issue of fully vaccinated employees.

OSHA Adopts CDC Guidance by Reference

On May 13, 2021, the Centers for Disease Control and Prevention (CDC) issued “Interim Public Health Recommendations for Fully Vaccinated People,” which stated: “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”

Within days, the Occupational Safety and Health Administration’s (OSHA’s) “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” webpage referenced the new CDC guidance. Specifically, until OSHA issues further updates, employers are to refer to the CDC guidance “for information on measures appropriate to protect fully vaccinated workers.”

Notably, the new CDC guidance sets forth a disclaimer that fully vaccinated people “should continue to follow any applicable federal, state, local, tribal, or territorial laws, rules, and regulations.” In connection with workplace safety programs, “[m]ost fully vaccinated people with no COVID-like symptoms do not need to quarantine, be restricted from work, or be tested following an exposure to someone with suspected or confirmed COVID-19, as their risk of infection is low.” CDC also recommends “fully vaccinated people with no COVID-19-like symptoms and no known exposure should be exempted from routine screening testing programs, if feasible.”

Cal/OSHA Updates Guidance to Reflect CDPH Recommendations

On May 3, 2021, the California Department of Public Health (CDPH) issued “COVID-19 Public Health Recommendations for Fully Vaccinated People,” which loosens mask and physical distancing requirements for fully vaccinated people, and allows fully vaccinated people to refrain from quarantine if they have had a COVID-19 exposure but are asymptomatic. The quarantine exemption is rooted in Executive Order N-84-20, which provides CDPH recommendations related to quarantine are incorporated into and supersede the text of the California Occupational Safety and Health Administration (Cal/OSHA) COVID-19 Prevention Emergency Temporary Standards (ETS). However, CDPH guidance does not exempt fully vaccinated employees in the workplace from following ETS face covering and testing requirements, as the guidance does not affect an employer’s obligation to comply with other provisions of the ETS.

Accordingly, on May 7, 2021, Cal/OSHA issued the following updates:

  • Fully vaccinated employees who had a COVID-19 exposure but are asymptomatic do not need to be excluded from work. (They must be excluded if symptomatic.)
  • Fully vaccinated employees who had a COVID-19 exposure but are asymptomatic do not need to quarantine.

Proposed Revisions to Cal/OSHA ETS

Cal/OSHA recently proposed ETS revisions to the Cal/OSHA Standards Board. They will be considered on May 20, 2021. The revised ETS would define “fully vaccinated” as follows: “the employer has documentation showing 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. Vaccines must be FDA approved or have an emergency use authorization from the FDA.”

Significantly, the proposed revisions will remove face-covering requirements for fully vaccinated persons outdoors and indoors where everyone is fully vaccinated, and they will exempt from the physical distancing requirement locations where all employees are fully vaccinated. In accordance with Cal/OSHA’s May 7, 2021 updates, fully vaccinated, asymptomatic employees will not be excluded from work after a COVID-19 exposure. In addition, employers would not be required to provide no-cost COVID-19 testing to exposed employees who are fully vaccinated and asymptomatic.

If approved, the revised ETS would be effective on August 1, 2021.

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