June 10, 2021 Updates to Cal/OSHA’s COVID-19 Emergency Temporary Standards for the Workplace Put on Hold, Once Again, Because of Conflicts with Other Public Health Guidance
Following an emergency meeting on Wednesday afternoon, the California Occupational Safety and Health Standards Board (OSHSB) withdrew the Emergency Temporary Standards (ETS) it revised just last week, which had already been submitted to the Office of Administrative Law (OAL) for final approval and implementation. OSHSB directed Cal/OSHA to provide new suggestions for revising the ETS more in line with other public health guidance. OSHSB plans to consider new proposed revisions to the ETS on June 17, for possible implementation by June 28. Until then, the current version of the ETS, issued in November 2020, remains in effect.
OSHSB held an emergency meeting to consider, and take public comment on, the implications of new guidance from the California Department of Public Health (CDPH) regarding the use of face coverings. The CDPH’s new guidance to the general public, which will go into effect on June 15, aligns with guidance from the federal Centers for Disease Control and Prevention (CDC). Under the new CDPH guidance, fully vaccinated persons can safely go without face coverings in most public indoor settings, regardless of the number of persons present or proximity to unvaccinated persons. And, businesses may allow patrons and guests to self-attest to their vaccination status when entering their sites. This directly conflicts with Cal/OSHA’s revised ETS, which was set to become law within a matter of days. Those revised standards would have required vaccinated employees to keep face coverings on indoors unless every person in the room is fully vaccinated, as confirmed by the employer’s inspection of vaccination documentation from employees.
At the conclusion of yesterday’s meeting, including another lengthy public comment session punctuated by impassioned objections to any continued mask mandates, the OSHSB unanimously voted to withdraw its June 3rd revised ETS. The OSHSB directed Cal/OSHA to provide additional suggested changes to the ETS, with the goal of better aligning with the CDC’s and CDPH’s guidance on face coverings. These additional changes will be considered by OSHSB at its next meeting on June 17. Any revisions to the ETS adopted on June 17 will once again, return to the OAL for review, with an implementation deadline of June 28.
In related news, today, the U.S. Labor Department's Occupational Safety and Health Administration (OSHA) issued new COVID-19 emergency workplace regulations for the health care sector, but notably declined to issue similar regulations for all employers. Instead, OSHA updated its COVID-19 health and safety guidance for general industry. This guidance tracks CDC (and now CDPH) recommendations and provides that “Unless otherwise required by federal, state, [or] local [laws], most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.” OSHA’s guidance now focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces. Accordingly, face coverings and other COVID-19 related precautions in the workplace are not recommended for vaccinated persons. Although not discussed by the OSHSB yesterday, this new development at the federal level may impact the direction Cal/OSHA takes with its forthcoming, additional changes to the state’s ETS.
What This Means
It is unclear what the new, proposed face covering rules will say in Cal/OSHA’s re-revised ETS. The last time the OSHSB asked Cal/OSHA to better align the ETS with CDC guidance, significant differences remained and were approved, which set the stage for this latest return to the drawing board.
If the revised ETS are fully aligned with CDPH’s new guidance on face coverings, it would mean that unvaccinated employees would not have to wear face coverings indoors, except in certain limited settings such as healthcare, public transit, K-12 schools and childcare, shelters and correctional facilities. Further, vaccinated employees working at so-called “mega events” with 10,000 or more persons would also not have to wear face coverings. It should also mean that employers would not be required to offer respirators (e.g., N95 masks) to all unvaccinated employees; however, several OSHSB members indicated their continued support for, and even expansion of, this requirement to both unvaccinated and vaccinated employees. Several OSHSB members also expressed skepticism of CDPH’s position that persons may self-attest to their vaccination status when entering public indoor spaces. These Board members seemed uncomfortable allowing employees to self-attest in the workplace, preferring that employers police face covering rules by requiring documentation of employees’ vaccination status.
For now, Cal/OSHA’s current ETS passed in November of 2020 remain the law of the land in all California workplaces. This means that, among other things, California employers must continue to require all employees to: comply with symptom screening procedures before entering the worksite; wear face coverings unless they are alone in a room or actively eating; socially distance at all times; and quarantine from the workplace after a close contact with a COVID-19 positive person. These regulations will not be superseded or modified by either the Governor’s June 15 “reopening” of California or the CDPH’s new, relaxed health and safety guidance regarding COVID-19 for the general public.
PPSC will continue to monitor Cal/OSHA’s and the OSHSB’s efforts to revise the current ETS and will publish additional updates. For a detailed description of the current ETS, please refer to our December 2, 2020 e-update here.
For questions about the current ETS or anticipated changes, please feel free to contact one of the authors of this e-update or any Paul, Plevin, Sullivan & Connaughton LLP attorney.