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Cal/OSHA Approves Minor Modifications to COVID-19 Prevention Emergency Temporary Standards (ETS)

June 10, 2021 update: The changes outlined below will not take effect as the Occupational Safety and Health Standards Board (OSHSB) voted in a special meeting on June 9 to withdraw the revisions that it had voted to approve on June 3. In the special meeting, the OSHSB rescinded the proposals discussed in our article, reverted back to the original ETS adopted November 2020 which we briefly discussed here, and postponed further decisions. The OSHSB could consider new revisions at a future meeting, perhaps as early as the regularly scheduled meeting on June 17. In the meantime, the rules adopted in November of 2020 will remain in effect.


Cal/OSHA has relaxed some of its COVID-19 Prevention Emergency Temporary Standards (ETS) for fully vaccinated individuals to better align with the California’s June 15, 2021 goal to end most mask and physical distancing requirements.  But the proposed revisions stop short of fully adopting the May 13, 2021 CDC guidance for fully vaccinated individuals and do not (yet) provide guidance on several important issues, including the enforcement of documentation for vaccine verification and how employers can demonstrate that physical distancing is not feasible.

More specifically, the California Occupational Safety & Health Standards Board (OSHSB) voted on June 3, 2021 to adopt revisions to the ETS, the first update to Cal/OSHA’s November 2020 temporary COVID-19 prevention requirements.  The revised ETS is expected to go into effect no later than June 15, 2021 pending approval by the Office of Administrative Law (OAL), with some provisions effective July 31, 2021.  We have outlined the key updates below but note that developments regarding the ETS remain ongoing and we will continue to update this post accordingly, particularly should the OAL modify the revised ETS prior to approval.

As an initial matter, the ETS, similar to the CDC guidance, defines “fully vaccinated” to mean the employer has documentation showing that an individual received, at least 14 days prior, the second dose of a two-dose regimen, or a single dose of an FDA-approved or emergency authorized vaccine.

Face Coverings/Respirators: When indoors, fully vaccinated workers without COVID-19 symptoms do not need to wear face coverings in a room where everyone else is fully vaccinated and not showing symptoms.  However, where there is a mixture of fully vaccinated and unvaccinated persons in a room, all workers will continue to be required to wear a face covering.  Further guidance is expected regarding vaccine verification and other questions the new regulations raise, such as how employers and employees are to be made aware of each individual’s vaccine status.

The definition of a sufficient face covering includes only a medical, surgical, or two-fabric layer mask, or respirator.  This means that certain cloth masks such as a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric will not meet the safety standard.

After July 31, 2021, employers will have to provide respirators, such as N95s, to all employees working indoors or at an outdoor mega event, who are not fully vaccinated, for voluntary use and train those employees on proper use.  Use of respirators by employees is voluntary. “Respirator” means “a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.” The ETS is silent as to how often the respirators must be replaced and by whom.

Physical Distancing/Partitions: Until July 31, 2021, employers must continue to enforce six feet of physical distance between employees working indoors or at outdoor mega events, unless (a) all employees who are not fully vaccinated are wearing respirators, physical distancing is not feasible; and exposure is momentary while persons are in motion; (b) if overall physical distancing is not feasible; or (c) all employees are vaccinated.  Similarly, if an employee wishes to remove partitions/barriers for employees working indoors and at outdoor mega events, it must provide respirators such as N95 masks, to employees who are not fully vaccinated. Employers are not required to enforce the wearing of respirators.  Practically, employers may decide to keep partitions in place as they (and physical distancing) are required in an outbreak situation.

COVID Testing: Employers must provide access to free COVID-19 diagnostic testing on paid time to symptomatic employees who are not fully vaccinated, regardless of whether there was a work-related exposure.  The ETS is currently silent as to how often this testing must be made available or whether this testing requirement applies to situations where an employee is working remotely. The test must be “a viral test for SARS-CoV-2 that is approved by the FDA or has an Emergency Use Authorization from the FDA to diagnose current infection with the SARS-CoV-2 virus; and is administered in accordance with FDA approval or the FDA Emergency Use Authorization as applicable.”

Exclusion from the Workplace: Fully vaccinated workers who do not have COVID-19 symptoms no longer need to be excluded from the workplace after close contact exposure.  However, fully vaccinated workers who test positive for COVID-19 must still be excluded from work for 10 days after the positive test, even if asymptomatic.

Prevention Program: Employers must still maintain a written COVID-19 Prevention Program with the following key additions to existing requirements:

Verification of Vaccination Status: The ETS does not require that employers track the vaccination status of all employees.  However, as a practical matter, employers must request documentation to confirm that an individual is fully vaccinated if the employer adopts the rule that permit fully vaccinated individuals to remove their face coverings when indoors with other fully-vaccinated workers.  The ETS does not specify what constitutes “documentation,” which may be the subject of additional guidance, but employers will likely need to review an employee’s vaccination records as opposed to simply accepting verbal attestation.

For additional information on this update and how it impacts your workforce, please reach out to a member of Mintz’s Employment, Labor & Benefits team. We will also be hosting a webinar on Thursday, June 17 discussing the current COVID-19 compliance landscape and will touch on this and many more issues. Please register here to attend.

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Authors

Jennifer B. Rubin is a Mintz Member who advises clients on employment issues like wage and hour compliance. Her clients range from start-ups to Fortune 50 companies and business executives in the technology, financial services, publishing, professional services, and health care industries.

Audrey Nguyen

Associate

Audrey Nguyen is a Mintz attorney who works on counseling, employment litigation, and other regulatory matters. Before law school, Audrey worked as a government relations analyst.