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Third Time’s the Charm: Cal/OSHA’s Revised COVID-19 Prevention Emergency Temporary Standards (ETS) Is Effective Immediately

Cal/OSHA has approved revised Emergency Temporary Standards (ETS) and Governor Newsom has issued an executive order waiving the usual 10-day legal review and approval process by the Office of Administrative Law (OAL).  This revised ETS (the third version since late May) more closely aligns with the CDC and California Department of Public Health (CDPH) guidelines on face covering restrictions and physical distancing.

The revised ETS also aligns with the ending of most mask and physical distancing requirements in California, effective June 15. Cal/OSHA has clarified through the FAQs that an employee’s vaccination status can be confirmed through self-attestation, among other means. The revised ETS also includes other key definitional changes and additional requirements and obligations for employers. We discuss some key changes below:

 “Fully vaccinated” definition: An employee is deemed “fully vaccinated” when an 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).

Vaccination documentation required: Employers are required to gather and maintain information regarding employee vaccinations. Employers should consider the confidentiality and privacy implication of such recordkeeping. Cal/OSHA has clarified that acceptable methods for documenting status are: 1) employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and the employer maintains a copy; 2) proof of vaccination shown to the employer, and the employer maintains a record (e.g., a log) of the employees who presented proof, but not the vaccine record itself; or 3) self-attestation by employee and employer maintains a record of who self-attests.

Employees who have not provided documentation or attestation of their fully vaccinated status must be treated as if they are unvaccinated for all purposes in the revised ETS. Nothing in the revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.

Face covering defined: 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 ETS standard.

Face covering usage clarified: Fully vaccinated employees do not need to wear face coverings indoors or outdoors, except for certain situations during outbreaks and in settings where the CDPH requires all persons to wear them. Employers must document the vaccination status of fully vaccinated employees if they do not wear face coverings indoors.

When outdoors, face coverings are not required for unvaccinated employees, except for certain employees during outbreaks.

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., while eating or drinking, while alone in a room, while physical distancing, etc.)

Respirators to be made available upon request: Employees who are not fully vaccinated may request respirators, such as N95 masks, from their employers, which shall be provided at no cost, when working indoors or in vehicles with more than one person. Employers are not required to mandate their usage. At present there is no guidance on the timeframe for California employers to respond to employee requests for respirators.

Physical distancing requirements removed: Physical distancing requirements have been eliminated (even for unvaccinated employees) except where an employer determines there is a hazard and for certain employees during major outbreaks.

COVID testing to be made available: Employers must offer COVID-19 testing at no cost during paid time to employees with COVID-19 symptoms who are not fully vaccinated, without requiring that it is a work-related exposure 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.”

Some important requirements from the November 2020 COVID-19 Temporary Standard remain in place:

  • Employers must establish, implement, and maintain an effective written COVID-19 Prevention Program that includes:
    • Identifying and evaluating employee exposures to COVID-19 health hazards.
    • Implementing effective policies and procedures to correct unsafe and unhealthy conditions.
    • Allowing adequate time for handwashing and cleaning frequently touched surfaces and objects.
    • Cal/OSHA has developed a sample COVID-19 Prevention Program as a model.
  • A new requirement is that COVID-19 prevention training must now include information on how the vaccine is effective at preventing COVID-19 and protecting against both transmission and serious illness or death.

Review of additional guidance and training: Employers are to review the California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.

Protocol for infections and outbreaks: When there are multiple COVID-19 infections and COVID-19 outbreaks Employers must follow the requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in an exposed workgroup in a 14-day period) and major outbreaks (20 or more cases within a 30-day period). During any outbreak, face coverings are required regardless of employee vaccination status: 1) indoors and 2) outdoors when employees are less than six feet from another person. During major outbreaks, six-feet physical distancing is required where feasible, both indoors and outdoors.

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.

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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.