CAL/OSHA Changes COVID-19 ETS: What You Need to Know

UPDATE June 10, 2021: On June 9, 2021, the Board voted to withdraw the revised ETS that they approved on June 3, 2021 (expected to go into effect on June 15, 2021). This means that the original ETS will remain in effect for the time being. Cal/OSHA will review CDC’s and CDPH’s new mask guidance, and the Board could consider new revisions at a future meeting, perhaps as early as June 17, 2021. 

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On June 3, 2021, the California Occupational Safety & Health Standards Board (OSHSB) voted to approve Cal/OSHA’s proposed revised Emergency Temporary Standards (ETS). It was a marathon session, lasting roughly 10 hours.  Upon Office of Administrative Law (OAL) approval, employers will be able to relax some of the measures required under the current ETS. But employers still will have to enforce several requirements, including mask wearing for vaccinated individuals, that stray from the current relaxed measures recommended by the CDC and the state of California’s plans to end most mask and social distancing requirements for vaccinated individuals on June 15, 2021.

Background

On Nov. 19, 2020, the California Occupational Safety and Health Standards Board (the “Board”) of the Division of Occupational Safety and Health (“Cal/OSHA”) adopted Emergency Temporary Standards (“ETS”) intended to combat the spread of COVID-19 in California workplaces. On Nov.30, 2020, the Office of Administrative Law (“OAL”) approved the ETS as written.

On May 7, 2021, Cal/OSHA published a revised ETS to be considered at the Board’s meeting on May 20. On May 19, Cal/OSHA requested that the Board delay voting on the revised ETS, stating that the CDC’s new guidance allowing fully vaccinated individuals to forego masks in most situations made the revised ETS out of date. The Board obliged.

On May 28, Cal/OSHA published the second revised ETS to be considered at the Board’s meeting on June 3, 2021. During the meeting, the Board originally rejected the second revised ETS (4-3 vote), but the Board then took a re-vote and passed it unanimously. Cal/OSHA then announced that it will create a three-person subcommittee to draft a third revised ETS, which could potentially be published as soon as June 12, 2021.

It is anticipated that the OAL will approve the second revised ETS, and the second revised ETS will become effective on or around June 15, 2021.

What does this mean for California Employers?

Some of the most notable requirements under the newly passed ETS are:

1. Mask Requirements: Masks are still required at the workplace, even for fully vaccinated employees, unless all persons in a “room” are fully vaccinated and do not have COVID-19 symptoms.
2. Acceptable Face Coverings: The definition of a sufficient face covering includes only a medical, surgical, or two-fabric layer mask, or respirator. This means that many of the one-layer cloth masks that employees may have personally purchased will no longer meet the safety standard.
3. N95s for Unvaccinated Employees: After July 31, 2021, employers must provide respirators, such as N95s, to all employees who are not fully vaccinated for voluntary use.
4. Distancing and Partitions: When the revised standards take effect, employers can eliminate physical distancing and partitions or barriers for employees working indoors and at outdoor mega events, but only if they provide N95s to unvaccinated employees for voluntary use. After July 31, physical distancing and barriers are no longer required.
5. Vaccine Education: Employers must notify employees of the benefits of the COVID-19 vaccine, including its effectiveness in preventing serious illness or death, as well as inform employees about testing accessibility and proper respirator use.
6. COVID-19 Testing: Immediately upon the revised ETS becoming effective, employers must offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no indication that the exposure was work related.
7. Relaxing of Testing Rules for Vaccinated Close Contacts: Employers do not need to offer COVID-19 testing to workplace close contacts if the potentially exposed employees are fully vaccinated or have natural immunity (previously infected within the prior 90 days), and they remain asymptomatic.
8. Relaxing of Exclusion Rules: Fully vaccinated or naturally immune workers do not need to be excluded from work after a close contact so long as they remain symptom-free.
9. COVID-19 Outbreak Testing: “Outbreak testing” would no longer be required when the local public health department identifies the workplace as the location of an outbreak—which could eliminate the challenge many employers have faced with inconsistency in how local public health departments identify outbreaks.

Cal/OSHA will post additional FAQs prior to any new rules taking effect; hopefully these will provide much-needed clarification. If you have any questions about compliance with the second revised ETS or any other COVID-19 guidance, please contact your Payne & Fears attorney.