June 4, 2021 Health & Safety Board Approves Long-Awaited Updates to Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) for the Workplace
Last night, at the conclusion of a nine-hour public meeting, the California Occupational Safety and Health Standards Board (OSHSB) unanimously voted to approve long-awaited revisions to the current ETS, which were implemented last November. The revised ETS will take effect no later than June 15, when approved by the state’s Office of Administrative Law. They will remain in effect through the end of 2021, unless they are revised or rescinded. Additional revisions appear likely given the OSHSB’s comments and decision to form a subcommittee to explore better alignment with current CDC guidance. However, any revisions are unlikely to take effect until the end of July.
In sum, the revisions are a mixed bag for employers. Despite vastly reduced transmission and hospitalization rates, as well as a highly successful public vaccination program, the revised ETS provide only modest relief from existing, restrictive workplace rules. Most notably:
- masks are no longer required when every person in a room is fully vaccinated and asymptomatic; however, documentation of vaccination status is required;
- fully vaccinated and naturally immune employees need not be excluded from the workplace or offered testing after a COVID-19 exposure;
- physical distancing and cleanable partitions are no longer required if employers offer respirators (e.g., N95 masks) to all unvaccinated employees for voluntary use;
- physical distancing is no longer required for outdoor work, except for “mega events” with 10,000 or more people; and
- disinfecting requirements have been replaced with daily cleaning.
On the other hand, the revised ETS create several new obligations for employers. Most notably, employers must now:
- offer to provide respirators (e.g., N95 masks) to all unvaccinated employees who work indoors or at “mega events” (while respirators must be offered, unvaccinated employees may choose to use another compliant mask);
- provide training to unvaccinated employees on the proper use of respirators;
- obtain documentation of vaccination status from employees before treating them as fully vaccinated; and
- prohibit employees from wearing common types of face coverings in the workplace, such as scarves, bandanas and single-layer cloth masks. Compliant face coverings now consist of either a surgical mask, medical procedure mask, respirator, or tightly woven fabric or non-woven material of at least two layers.
Employers will need to promptly adapt to these new Cal/OSHA standards. One of the most immediate requirements will be the responsibility to offer N95 masks (or other respirators) to unvaccinated employees who work indoors, as well as training on how to use them. Employers will also need to develop a “respirator program” that complies with Cal/OSHA’s new standards, which include designating a qualified program administrator, if they have any unvaccinated employees who chose to wear a respirator.
Perhaps the more difficult issue will be for employers who wish to utilize the more relaxed rules for fully vaccinated employees, in which case they must obtain documentation of vaccination status. This will create several issues for employers:
1. How to deal with employees who decline to provide the documentation, lost the documentation, or provide questionable documentation.
2. How to efficiently, effectively and properly communicate to employees which colleagues have provided vaccination documentation and, therefore, are eligible for maskless meetings.
3. How to deal with claims of “mask harassment,” from employees potentially pressuring colleagues to become vaccinated or to provide vaccination documentation so they can all have maskless meetings.
4. How to store the vaccination documentation, which is effectively medical documentation.
Employers will also have to decide how to monitor and determine if masks worn by employees are “compliant” (a surgical mask, medical procedure mask, respirator, or tightly woven fabric or non-woven material of at least two layers).
These issues, and undoubtedly others, will provide new challenges to employers as they navigate the post-pandemic return to the workplace.
For questions about the revised ETS or assistance with implementing the new rules, feel free to contact any of the authors of this e-update or any Paul, Plevin, Sullivan & Connaughton LLP attorney.