Cal/OSHA Publishes Latest Revised Proposal for COVID-19 Emergency Temporary Standards

Update (June 16, 2021): On June 14, 2021, Gov. Gavin Newsom stated that he is prepared to issue an executive order later this week to immediately implement a loosening of workplace mask-wearing regulations for fully vaccinated individuals if the Standards Board approves them on Thursday, June 17. Under normal procedures, the Board’s decision would have to be reviewed by state attorneys and would not take effect until the end of the month. Governor Newsom’s executive order would close that gap and immediately implement the rules later this week.

____________________________________________________________

Introduction

On June 11, 2021, California’s Occupational Safety and Health Standards Board (Standards Board) published its latest set of proposed revisions to the Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (Revised ETS).  The Standards Board will vote on the Revised ETS at its June 17 Standards Board meeting. The proposed regulation will then be submitted to the Office of Administrative Law (OAL) for approval.  Once approved, the Revised ETS will take effect for California employers no later than June 28. 

This latest version of the Revised ETS (now the third proposed version published since late May) is the latest development in a series of attempts by the Standards Board to pass updated COVID-19 standards to align with the latest guidance from the California Department of Public Health (CDPH) and Centers for Disease Control (CDC) on physical distancing and the use of face coverings for vaccinated individuals. 

Key Points for California Employers

Fully Vaccinated Employees Are Not Required to Wear Face Coverings Indoors: Consistent with the latest federal and state guidance, the Revised ETS will exempt fully vaccinated employees from wearing face coverings indoors. Employees who are not fully vaccinated will still be required to wear face coverings while indoors or in vehicles, subject to certain exceptions (e.g., alone in a room, eating or drinking while maintaining physical distancing, while wearing a respirator, etc.)

Physical Distancing Requirement Removed: The Revised ETS  removes physical distancing requirements. This revision reflects a more consistent alignment with Gov. Gavin Newsom’s California reopening guidelines.

Employers Will Need to Provide Respirators to Unvaccinated Employees Upon Request: The Revised ETS requires that upon request, employers shall provide respirators for voluntary use to all employees who are not fully vaccinated and who are working indoors or in vehicles with more than one person. Employers are only required to provide respirators upon request by the employee; they are not required to mandate their actual use by employees. We expect Cal/OSHA to publish FAQs to clarify the timeframe for California employers to respond to employee requests for N95 masks.

Modified Definition of “Fully Vaccinated”: The proposed revised regulation includes a slightly revised definition of “fully vaccinated,” which now reads 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. Vaccines must be FDA (U.S. Food and Drug Administration) approved; have an emergency use authorization from the FDA; or, for individuals fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO). This inclusion of international vaccines is beneficial for international companies as employees return to the workplace.

Vaccination Documentation Requirement: The Revised ETS requires that the employer gather and maintain information regarding employee vaccinations. The Revised ETS does not specify how an employer must maintain such documentation. Employers must address potential privacy and recordkeeping implications in maintaining such records in light of confidentiality and privacy laws. We expect Cal/OSHA to publish FAQs to address documentation requirements.

“Exposed Group” Replaces “Exposed Workplace” for COVID-19 Exposures: The current ETS draws COVID-19 exposures along physical bounds to include the “Exposed Workplace,” an especially problematic definition for employers with large workforces in a single facility. Now, a COVID-19 exposure will be drawn along the lines of the “Exposed Group,” defined as “all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period.”  The Revised ETS’ delineation of a COVID-19 exposure to the “Exposed Group” will determine the scope and extent of an employer’s obligations, including investigating, contract tracing, notifying, reporting and maintaining records, counting toward outbreaks, and administration of COVID-19 testing (where necessary). 

Testing for Minor and Major Outbreaks: The Revised ETS clarifies an employer’s COVID-19 testing obligations by limiting the testing group to those within the “Exposed Group.”  For minor outbreaks, the Revised ETS exempts from the testing group:  (1) employees who were fully vaccinated before the testing provisions of the Revised ETS became applicable to the workplace and who do not have COVID-19 symptoms; (2) COVID-19 cases who did not develop COVID-19 symptoms after returning to work for 90 days after the initial onset of COVID-19 symptoms; and (3) COVID-19 cases who never developed symptoms, for 90 days after the first positive test.  For major outbreaks, employers will need to test all employees in the exposed group, regardless of vaccinated status.

As we await approval of the ETS, employers with operations in California should revisit their COVID-19 protocols for compliance and update their written COVID-19 Prevention Plans and trainings to account for the new provisions in the Revised ETS.  If you have any questions about compliance with the third revised ETS or any other COVID-19 guidance, please contact your Payne & Fears attorney.