UPDATE: Cal/OSHA Standards Board Approves Changes To COVID-19 Emergency Temporary Standards (ETS) To Align with CDC/State “Re-Opening”

On June 17, 2021, California’s Occupational Safety and Health Administration (Cal/OSHA) Standards Board approved revised COVID-19 Emergency Temporary Standards (ETS), to generally track CDC and Cal Department of Public Health (CDPH) relaxed guidance.  The ETS apply to most California employers not subject to the Aerosol Transmissible Disease (ATD) Standard.  In order to align the Cal/OSHA ETS with his June 15 “reopening” of California and avoid contradictory obligations, Governor Newsom signed an Executive Order to take these ETS outside of the Office of Administrative Law’s usual 10 day review period.  The readopted ETS are now effective.

While the revised ETS are intended to align Cal/OSHA standards with CDC guidelines and the State’s reopening plan—physical distancing is no longer required, and “fully vaccinated” employees need not wear face coverings—California employers should be aware of some new and unique provisions of the newly adopted ETS.

By way of background, the ETS, in effect since November 30, 2020 required the development of a COVID-19 Prevention Program and imposed on employers numerous obligations designed to prevent, respond and track COVID-19 “exposures” and “cases” in the workplace.  Face coverings for all and physical distancing were key to these standards.

As the COVID-19 landscape changed, Cal/OSHA sought to revise the ETS through the “readoption” process to relax many of the November 2020 requirements and obligations.  The ETS approved on June 17, 2021 were the third revised version of the ETS to be presented to the Board since May 2021.  The first version was withdrawn at the agency’s request before the Board meeting.  The Board initially rejected and then approved a second version of the ETS at its June 3 meeting, only to withdraw them while under OAL consideration.  As a result of the June 17 Board approval and Executive Order, the Board’s newly revised and “readopted” ETS displace the November 2020 ETS immediately.

The newly readopted ETS are available here.  Cal/OSHA has issued Frequently Asked Questions and a Fact Sheet relating to the newly readopted ETS.

Below are some of the more notable highlights of the new ETS.  Employers should note that many of the requirements of the earlier ETS, such as the need for a COVID-19 Prevention Plan, remain.

• Mandatory Physical Distancing Requirement Dropped: The revised ETS omit the physical distancing and partition requirements found in the earlier ETS.  Employers still have a duty to evaluate COVID-19 hazards in the workplace and implement controls as part of the required COVID-19 Prevention Program; thus, employers may determine that these measures are necessary for their workplace.  During “outbreaks” (3 or more employee COVID-19 cases in an “exposed group” during a 14 day period), employers are specifically required to consider physical distancing and barriers (partitions) as a control to limit transmission.  During “major outbreaks” (20 or more employee COVID-19 cases in an exposed group during a 30 day period), physical distancing or partitions must be used, regardless of vaccination status.

• Face Covering Requirements Relaxed and Clarified: Employees who are not “fully vaccinated” must continue to wear face coverings indoors and in vehicles.  But “fully vaccinated” employees do not have to wear face coverings, even when in the presence of unvaccinated persons, unless CDPH orders require all persons to wear face coverings (such as in K-12 classrooms childcare, or healthcare settings), or during “outbreaks” where members of the “exposed group” must wear face coverings indoors and in non-physically distanced outdoor settings.
  • “Face coverings” includes surgical masks, medical procedure masks, respirators worn voluntarily, or tightly woven fabrics of at least two layers, but does not include scarves, ski masks, balaclavas, bandanas, turtlenecks, collars, or single layer fabric.
  • “Fully vaccinated” means 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 approved or, for persons vaccinated outside the U.S., listed for emergency use by the World Health Organization.
    • Cal/OSHA has stated in its FAQs that employers may “document” an employee’s vaccination status by having employees provide proof of vaccination and maintaining a copy, keeping a record of employees who have presented proof of vaccination but not retaining a copy, or by maintaining a record of employee self-attestation as to vaccination status.
  • New Provisions Regarding Employer-Provided Respirators: Employers will have to provide, but only upon request, respirators for voluntary use to all employees who are not fully vaccinated and are working indoors or in vehicles with more than one person.  During “major outbreaks,” employers must provide respirators for voluntary use to all employees.
    • “Respirators” are defined to mean NIOSH approved devices, such as N95 masks. To help with this transition, the State is providing assistance to businesses. More information on this program is here.  Employers are required to ensure that employee has the correct size respirator.
  • New Training Requirements: Employer COVID-19 training must include not only information on the airborne nature of COVID-19, the difference between face coverings and respirators, and how to access COVID-19 testing and vaccination, but also the “fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.”
  • Increased Requirement to Assess Ventilation As Part Of COVID-19 Prevention Program: For indoor locations, employers must evaluate how to maximize ventilation with outdoor air; the highest level of filtration efficiency compatible with the existing ventilation system; and whether the use of portable or mounted High Efficiency Particulate Air (HEPA) filtration units, or other air cleaning systems, would reduce the risk of COVID-19 transmission. Also, employers will have to consider the State Department of Public Health’s guidelines for ventilation.
  • Testing For All Symptomatic Employees Who Are Not Fully Vaccinated: Employers are now required to make COVID-19 testing available during paid time and at no cost to employees with COVID-19 symptoms who are not fully vaccinated.
  • Revised Rules Regarding Employees Who Are “Close Contacts” of COVID-19 Cases:  The revised ETS do not require employers to exclude from the workplace or offer testing to “fully vaccinated,” asymptomatic employees who are “close contacts” of a COVID-19 case.  Under the ETS, these exceptions also extend to employees who have recently had COVID-19 and meet certain specified requirements.  In “major outbreak” situations, employers must provide testing to all employees in an “exposed group” regardless of vaccination status.
  • Expanded Notice Requirement of COVID-19 Cases To Employees At the Worksite: If the employer “knows or has reason to know” that an employee who is required to receive notice did not receive it, or has limited literacy in the language in which the notice was written, the employer must provide the employee verbal notice in a language the employee understands.
  • Employer Provided Housing And Transportation Rules Inapplicable to Fully Vaccinated: Existing ETS rules for employer provided housing and transportation will no longer apply where all employees are “fully vaccinated.”
  • ETS Inapplicable to Telework: The readopted ETS clarify that the ETS do not apply to employees teleworking from a location of the employee’s choice that is not under the control of the employer.

These are just some of the major highlights of the newly “readopted” ETS.  All employers in California would be well served to undertake a full review of the revised ETS and their existing COVID-19 Prevention Plans and procedures to ensure compliance.

The lawyers at RJO are here to assist you in these endeavors.

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