Employment Law Alert: Revised Cal/OSHA COVID-19 Prevention Emergency Temporary Standards

On June 17, 2021, the Cal/OSHA Standards Board approved revisions to the COVID-19 Emergency Temporary Standards (“ETS”). Cal/OSHA has also published FAQs to the revised ETS. Under Governor Gavin Newsom’s executive order, these revisions are effective immediately.

Below are some of the significant changes to the ETS:

Face Coverings

Under the revised ETS, face coverings are not required outdoors regardless of an employee’s vaccination status (except during outbreaks). Employers must communicate to workers that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained.

Fully vaccinated employees are not required to wear face coverings while indoors or in vehicles. Under the revised ETS, “fully vaccinated” means the employer has documentation showing 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. (See below for discussion of documentation requirements.)

Unvaccinated employees are required to wear face coverings while indoors and in vehicles, with limited exceptions, including: when alone in a room or vehicle, while 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), when a reasonable accommodation is required, or when job duties make a face covering infeasible or create a hazard.

In addition, face coverings must be worn when required under California Department of Public Health (“CDPH”) guidelines. Currently, the CDPH’s June 15, 2021 guidelines require face coverings for all individuals, regardless of vaccination status, in the following settings: while on public transit and transportation hubs; indoors in K-12 schools, childcare and other youth settings; healthcare settings; correctional facilities and detention centers; homeless shelters, emergency shelters, and cooling centers.

The FAQs clarify that nothing in the revised ETS prevents an employer from requiring all employees to wear a face covering. Employees are generally protected from retaliation for wearing face coverings regardless of their vaccination status.

Documentation of Fully Vaccinated Status

The revised ETS does not specify a particular method for documentation of an employee’s fully vaccinated status. Acceptable options include:

• Employees provide proof of vaccination (e.g., vaccine card, image of vaccine card or health care document showing vaccination status) and the employer maintains a copy of the vaccine record.
• Employees provide proof of vaccination, and the employer maintains a record of the employees who presented proof, but not the vaccine record itself.
• Employees self-attest to vaccination status and the employer maintains a record of who self-attests.

Under the ETS, an employer is not obligated to ascertain an employee’s vaccination status. However, documentation of fully vaccinated status is necessary if the employer or employee wants to take advantage of the ETS rules relating to fully vaccinated employees. Absent such a requirement, an employee has the right to decline to state if they are vaccinated or not. In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee. In other words, absent a general employer requirement to provide documentation of vaccination status, employees may refuse to answer a mere question about whether they are vaccinated. Employers that contemplate implementing a mandatory policy requiring employees to show proof of vaccination status should note that any such requirement is subject to reasonable accommodation requirements for disability and religion. (See guidance from the federal Equal Employment Opportunity Commission and California Department of Fair Employment and Housing.)

Physical Distancing

The revised ETS has eliminated physical distancing and barrier requirements regardless of vaccination status, except for the following:

• During an outbreak (three or more employees in an exposed group), employers are required to evaluate whether physical distancing or barriers are necessary to control the transmission of COVID-19.
• During a major outbreak (20 or more employees in an exposed group), physical distancing and barriers must be used for all employees, regardless of vaccination status.

The FAQs to the revised ETS clarify that employers may choose to implement additional protective measures than are required under the ETS, including the use of physical distancing and barriers.

Respirators for Unvaccinated Employees

The revised ETS requires employers to provide respirators to any unvaccinated employee who works with others indoors or in a vehicle and who requests one. The respirator must be the right size, and the employee must receive basic instruction on how to get a good seal or fit.

Under the ETS, “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 a N95 filtering facepiece respirator.

The FAQs to the ETS provide guidance on how employers may comply with the requirement to provide a respirator upon request. Initially, an employer may either stock respirators and offer them to employees or may poll workers to determine which employees wish to be provided a respirator before obtaining them. However, the FAQs indicate that once an employer has determined that it has employees who wish to wear respirators, the employer should have a sufficient number of respirators available of the correct size and type to fulfill reasonably foreseeable requests upon demand. Also, if an employee prefers to select and purchase their own respirator, an employer may permit this alternative, as long as the employer reimburses the employee in a timely manner. An employer is under a continuing obligation to provide respirators to eligible unvaccinated employees at any time they communicate to the employer their desire to wear one.

In a major outbreak, employers must offer respirators to employees regardless of vaccination status and without waiting for a request from the employee immediately upon determining a major outbreak is underway.

Exclusion from the Workplace

Employers are still required to exclude COVID-19 cases from the workplace until they meet certain return to work criteria. Under the ETS, a “COVID-19 case” means an individual who tests positive for COVID-19, is diagnosed with COVID-19 by a licensed healthcare provider, is subject to a COVID-19-related order to isolate issued by a local or state health official, or has died due to COVID-19, in the determination of a local health department or per inclusion in the COVID-19 statistics of a county.

Employers are also required to exclude from the workplace employees who had a close contact with a COVID-19 case until they meet specified return to work criteria, with the following exceptions: (1) employees who were fully vaccinated before the close contact and who do not develop COVID-19 symptoms; and (2) employees who previously had COVID-19 within the last 90 days and have remained free of COVID-19 symptoms. Under the revised ETS, “close contact” means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the high-risk exposure period. The ETS excludes from the definition of close contact employees who wore a respirator whenever they were within six feet of the COVID-19 case during the high-risk exposure period.

Testing

Employers are required to offer COVID-19 testing at no cost to employees during paid time to:

• Symptomatic unvaccinated employees, regardless of whether there is a known exposure.
• Unvaccinated employees after an exposure.
• Vaccinated employees after an exposure if they develop symptoms.
• Unvaccinated employees in an outbreak.
• All employees in a major outbreak.

Notably, the revised ETS eliminates the requirement for employers to provide testing to employees who were fully vaccinated before a close contact and who do not develop COVID-19 symptoms, and employees who previously had COVID-19 within the last 90 days and have remained free of COVID-19 symptoms.

Other Requirements

The revised ETS imposes a number of additional requirements and retains several of the prior requirements from the November 30, 2020 ETS, including, but not limited to: a written COVID-19 Prevention Program, training and instruction to employees, notification to employees of exposure and close contacts, notification to public health departments of outbreaks, requirements for responding to COVID-19 cases and outbreaks, and quarantine and exclusion pay requirements. 

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Employers will need to update their written COVID-19 Prevention Program to comply with the revised ETS requirements, and comply with the other requirements in the revised regulations.