Cal-OSHA Standards Board Adopts Emergency Temporary Standards (ETS) Revisions, Governor Newsom Issues Immediately Effective Executive Order

Written by Jeremy Mittman & Thea Rogers

Last Friday, June 17, Governor Newsom signed the Cal-OSHA Safety and Health Standards Board’s revisions to its Emergency Temporary Standards (“ETS”) into immediate effect (Executive Order linked here), thereby more closely aligning Cal-OSHA COVID-19 face covering and physical distancing standards with the California Department of Public Health (“CDPH”) and Centers for Disease Control (“CDC”) recommendations.  Although Governor Newsom had lifted many of California’s COVID-19 restrictions on June 15, 2021, it remained unclear what workplace standards should look like under Cal-OSHA.  As we previously wrote, for example, an initial set of ETS proposed revisions advocated for stringent workplace mask requirements, however these proposals were pulled before an official vote.

The key takeaways of the new rules are:

  1. Fully vaccinated employees do not need to wear face coverings indoors, however their vaccination status must be documented (as described in [3] below).  Face coverings are not required outdoors, regardless of employee vaccination status, however they are still required for unvaccinated employees in most circumstances indoors (and it is still recommended that unvaccinated employees wear face coverings outdoors where physical distancing cannot be maintained).  An unvaccinated employee is only permitted to remove their face covering when alone in a room, eating or drinking, or when an accommodation is required or if the employee’s job duties make wearing a face covering infeasible.
  2. Additionally, fully vaccinated employees do not need to be tested or quarantined after close contacts with COVID-19 cases if they were fully vaccinated prior to exposure, unless they have symptoms. If a major outbreak (20 or more cases in an exposed group of employees) occurs at the workplace, however, employers are required to provide mandatory twice-weekly COVID-19 testing of all employees in the exposed group, regardless of vaccination status.  Employers must also continue to provide testing to symptomatic unvaccinated employees, at no cost and during paid time, regardless of whether COVID-19 exposure was work related.
  3. Vaccination documentation is required in order to go maskless.  Acceptable documentation methods include (1) requiring an employee to provide their vaccine card, an image of vaccine card, or a health care document showing vaccine status and the employer maintains a copy of the record; (2) requiring an employee to provide proof of vaccination, but not retaining the actual vaccine record; or (3) permitting an employee to self-attest to vaccination status, and the employer maintains a record of self-attestations.  Under the ETS, an employee is permitted to decline to provide their employer with their vaccination status, however the employer must then treat the employee as unvaccinated.  Under no circumstance can the employer retaliate or discriminate against an employee based on vaccination status.
  4. Physical distancing is not required, regardless of employee vaccination status.  As a caveat, however, employers must reevaluate whether physical distancing or barriers are required if there is an outbreak (three or more cases in an exposed group of employees) or major outbreak.
  5. Respirators (e.g. N-95 masks) are California’s solution to permitting unvaccinated employees to return to the workplace, while also relaxing physical distancing requirements. Under the revised ETS, employers must provide respirators to unvaccinated employees who work with others indoors and who request a respirator, and to any employees in an exposed group when there is a major outbreak, for their voluntary use.  Employers must be able to provide respirators to employees upon request, at no cost, as they are under a continuing obligation to provide respirators to unvaccinated employees at any time they communicate a desire to wear one.  That said, employers cannot mandate that any employees actually wear provided respirators (as opposed to face coverings, which the employer must “ensure” that unvaccinated employees wear).

Employers continue to have an ongoing duty to assess workplace hazards and implement controls to prevent COVID-19 transmission, and therefore must continue to maintain an effective, written COVID-19 Prevention Program. Furthermore, nothing in the revised ETS prevents employers from taking additional protective measures, such as requiring that everyone wear masks or physically distance.

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