Written by Jeremy Mittman and Thea Rogers

[UPDATE]:  As we reported below, Cal-OSHA’s Standards Board recently proposed a series of controversial amendments to CAL-OSHA’s COVID-19 Emergency Temporary Standards, which included face covering and social distancing requirements that many critics considered unnecessarily onerous in light of recent California Department of Public Health and CDC guidance.  Yesterday, the Board withdrew these proposed amendments.  While it is unconfirmed whether the public criticism surrounding these amendments was the cause of the Board’s decision to ultimately withdraw them, we do know that the Board plans to issue a revised set of proposed amendments that would more closely track public health guidelines and Governor Newsom’s plan to reopen California on June 15. These revised amendments could go to the Office of Administrative Law for consideration as soon as the end of the month.

 This is a developing story that we are currently monitoring. Please check back soon, as we will be providing updates as soon as the Cal-OSHA Standards Board issues its revised ETS amendments.

On June 3, 2021, CAL-OSHA’s Standards Board (a seven member body appointed to  adopt “reasonable and enforceable standards” for the agency) unanimously voted in favor of proposed amendments to CAL-OSHA’s COVID-19 Emergency Temporary Standards (ETS), which are currently applicable to almost all workplaces in the Golden State. The Office of Administrative Law will decide whether to grant or reject the proposed amendments following a ten day review period. To the dismay of perhaps many, if the Board’s ETS amendments are made official, they will certainly not track the recent Centers for Disease Control and Prevention’s (CDC) guidance that permits fully vaccinated persons to forgo masks and social distancing indoors.

Face Coverings. Assuming the new ETS amendments are approved by the Office of Administrative Law and take effect as scheduled, on June 15 (the same date California is scheduled to fully reopen its economy), the most significant divergence from other state agencies’ recent guidance concerns face coverings. In almost all circumstances, the amendments continue to mandate that California workers must wear face coverings at indoor worksites, regardless of vaccination status.  Only if every employee in a room is fully vaccinated and does not display COVID-19 symptoms, the amendments state, are employees in that particular room only permitted to dispense with their face coverings. Employees at indoor worksites are also permitted to remove their face coverings in the event that they are (1) alone in a room, (2) eating or drinking, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent feasible, or (3) during a limited time period in which an employee is required to perform a task that cannot feasibly be performed while wearing a face covering. Otherwise, the face covering must remain on. 

The amendments take a slightly more relaxed approach to outdoor worksites. In these circumstances, face coverings are only required if an employee is less than six feet apart from another person, and even then, face coverings are not required if employees are fully vaccinated and do not have COVID-19 symptoms.

Physical Distancing.  Six feet physical distancing requirements continue to remain in place for employees working at indoor worksites or outdoor “mega events” (i.e. events with 10,000+ participants or sports participants; these may include conventions, shows and/or concerts, among other large events) except where the employer adopts one of the following two options:

Option I:  Through July 31. There is NO distinction between vaccinated and unvaccinated employees.  ALL employees must be at least six feet apart from other people. There are only three exceptions to this physical distancing requirement: (1) if ALL employees wear respirators/N95s, as required by the employer, and use the devices in accordance with the CAL/OSHA respirator standards; (2) if the employer can demonstrate that it is not possible for its employees to physical distance by staying six feet apart (however, in this situation, the employees must stay as far apart as practicable possible); and (3) when employees are momentarily less than six feet apart from other people while in movement (e.g. walking in a hallway).

Option II: Through July 31. An employer may obtain proof of vaccination status from employees, and provide all unvaccinated employees with respirators/N95s for their voluntary use, in compliance with CAL/OSHA respirator standards.  

Regardless of whether an employer chooses to comply with Option I or Option II, after July 31 ALL employers must provide respirators/N95s to unvaccinated or not fully vaccinated employees at indoor worksites and/or outdoor “mega events.”

Vaccination Status.  How does an employer determine whether an employee is “fully vaccinated” under the ETS amendments?  CAL-OSHA has stated that an employee is “fully vaccinated” when the employer has received documentation showing that the employee has received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose FDA approved COVID-19 vaccine (or an emergency use authorization from the FDA).

Additionally, fully vaccinated employees who test positive for COVID-19 must be excluded from the workplace for ten days, even if they display no COVID-19 symptoms.

Testing.  Under the ETS amendments, free COVID-19 testing must be made available to unvaccinated or not fully vaccinated, symptomatic workers during paid working time, regardless of whether an employee’s exposure was work related.

 This is a developing story that we are currently monitoring. Please check back soon, as we will be providing updates as soon as the Office of Administrative Law decides whether to adopt the ETS amendments.