June 17, 2021 Health & Safety Board Adopts, and Governor Newsom Expedites, New CA COVID-19 Workplace Safety Rules

After a month of flipflopping on how best to revise the COVID-19 Emergency Temporary Standards governing California workplaces (ETS),  the California Occupational Safety and Health Standards Board (OSHSB) today voted to approve changes to the ETS that, for the most part, align with the current, more relaxed guidance from the California Department of Public Health (CDPH) and the Centers for Disease Control and Prevention (CDC).  Ordinarily, the revised ETS would not take effect until approved by the Office of Administrative Law (OAL) over a 10-day review period; however, immediately after the OSHSB’s vote today, Governor Newsom issued an Executive Order waiving the 10-day period.  The revised ETS will now take effect immediately upon their filing with the Secretary of State, which will likely be tomorrow.  Cal/OSHA also moved very quickly to provide guidance to employers on the new ETS by posting updated FAQs on their website.

Headliner changes to the ETS (subject to exceptions described below) are:

  • no more masks for vaccinated employees;
  • no more social distancing or barriers;
  • no more daily disinfecting;
  • no more excluding vaccinated or naturally immune employees from work if they have a close contact with a COVID-19 positive person; and
  • no need to affirmatively ask unvaccinated employees if they want a respirator.

The new ETS will remain in place through January 13, 2022, unless otherwise amended or rescinded by the OSHSB.  

Summary of Revised ETS

A number of important provisions in the current ETS are not changing.  The revised ETS will continue to require all covered employers to have an effective, written COVID-19 Prevention Program (CPP)[1], provide training and instruction to employees on its CPP, give notice to public health departments of any workplace outbreaks, notify employees of exposure and close contacts within 24-hours, offer free testing after certain COVID-19 exposures, and exclude certain COVID-19 cases and close contacts from the workplace with pay continuation.

Face Coverings.  In a welcome change from previous proposals, the new ETS no longer require fully vaccinated[2] employees to wear face coverings when working indoors,  regardless of the presence of unvaccinated persons, unless per CDPH guidance, they work in public transit, K-12 schools, health care or long-term care settings, correctional or detention facilities, or shelters.  Further, employees need not wear face coverings when working outdoors regardless of vaccination status.  However, in the event of an outbreak (i.e., three or more COVID-19 cases in the workplace with 14 days), face coverings must be worn by all employees in the exposed group.

Employers must ensure unvaccinated employees wear face coverings when indoors, except when they: (1) are alone in a room or vehicle, (2) are eating or drinking – although they must be socially distanced, (3) have a required medical or religious accommodation, and (4) are performing duties that make a face covering infeasible or create a hazard.  Employees not wearing a mask because of exceptions 3 or 4 must wear an effective alternative, such as a face shield with a drape, whenever their condition permits.  When an effective alternative cannot be worn, the employee must be socially distanced from others.

Under the revised ETS, employers must provide compliant face coverings (now more narrowly defined as a surgical mask, medical procedure mask, respirator worn voluntarily, or tightly woven fabric or non-woven material of at least two layers), and ensure unvaccinated employees wear them at all required times over their nose and mouth.  Vaccinated employees may also request, and must be provided, face coverings. 

Employers must continue to post the face covering requirements for non-employees on their premises.  Under CDPH’s recent public guidance, however, non-employees may self-attest to their vaccination status and businesses are not required to document this as they are for employees.  

Documenting Employee Vaccination Status.  Because the new mask mandate only applies to unvaccinated employees, employers will necessarily have to ask all employees who work indoors (except those at single-person worksites) about their vaccination status.  Moreover, the new ETS requires employers to “document” their employees’ status as fully vaccinated before allowing them to take advantage of relaxed face-covering and other safety rules.  Cal/OSHA’s revised FAQs provide welcome clarification on this obligation, stating that employers may either collect documentation of vaccination, conduct a visual inspection of vaccination documentation, OR allow employees to self-attest to their vaccination status. This means that California employers, like business owners under the CDPH guidelines, may use an “honor system” to determine vaccination status.  Employers will, however, need to document employee attestations or visual inspections when either approach is used.   

Physical Distancing & Barriers.  Notably, the new ETS eliminate all physical distancing and cleanable physical barrier requirements, regardless of employees’ vaccination status except during a “major outbreak,” which is 20 or more COVID-19 cases in the workplace during a 30-day period.  Employers would also need to evaluate the need to reinstate physical distancing and barriers during an “outbreak,” which is defined as three or more COVID-19 cases in the workplace during a 14-day period. 

Respirators.  The new ETS require employers to provide respirators (e.g., N95 masks) to unvaccinated employees only upon their request. This is a change from the prior proposal, which would have required employers to proactively ask employees if they wanted to use a respirator.  If an unvaccinated employee requests a respirator, the employer must promptly provide one.  When providing an N95 mask, the employer must also: (1) determine if the N95 itself will create a general hazard [note: this is not a medical review]; (2) give the employee a copy of Appendix D from Cal/OSHA’s respirator regulations; (3) ensure the N95 is the right size for the employee; and (4) train the employee on how to properly wear the respirator and how to perform a seal check per the manufacturer’s instructions each time it’s worn, and the fact that facial hair will interfere with the seal.

Per Cal/OSHA’s revised FAQs, employers may either stock respirators or poll workers to determine how many will be needed.  The FAQs also clarify that best practice is to provide a new N95 mask to employees each shift, or after the mask has been taken on and off five times.

Training.  Additional training topics are now required, including but not limited to the right of unvaccinated employees to request respirators without fear of retaliation, how to access COVID-19 testing and vaccinations, and information about legally mandated and applicable sick and vaccination leave (i.e., information regarding California’s COVID-19 Supplemental Sick Pay law and any similar local ordinances). 

Cleaning & Disinfecting.  Daily “disinfecting” of work surfaces or shared equipment is no longer required; regular cleaning is sufficient.  Further, employers no longer need to prohibit employees from sharing frequently used items such as phones, headsets, desks, keyboards, writing materials, instruments or tools.  And, these items do not need to be disinfected between use by different people.

Testing & Workplace Exclusions.  Under the new ETS, fully vaccinated employees exposed to COVID-19 via close contact[3] need not be offered free testing or excluded from the workplace as long as they have no symptoms.  The same rule applies to employees who already had COVID-19 within 90 days of a close contact (i.e., during the period they are deemed to be naturally immune).  Also new, an employee wearing a respirator that is required by the employer and used in compliance with Cal/OSHA respiratory protection regulations, will not be considered a close contact or need to quarantine from the workplace, if exposed to a COVID-positive person.  However, in an expansion of the ETS rules, employers must now offer no-cost testing to unvaccinated employees during paid time whenever they have COVID-19 symptoms, regardless of whether they were exposed at work.   

The new ETS also retains the controversial pay continuation obligation for employees who are excluded from the workplace under its provisions.  However, the new rules clarify that if an employee receives disability or workers’ compensation payments while excluded from work, they are not entitled to separate pay continuation from the employer.   

What This Means

Most employers and employees will likely feel relieved by these long-awaited changes to Cal/OSHA’s strict masking, social distancing, quarantining, and cleaning rules, which have been in place since the height of the pandemic.  Yet the revised ETS may create a few new challenges for employers, including:

- Whether to allow employees to self-attest to their vaccination status or require documentation.  This will obviously be an individualized assessment for each employer, and should take into account the attributes and sensitivities of the workforce, the company culture, as well as the logistical feasibility of collecting and confidentially storing vaccination records or documenting a visual inspections of same.  As the OSHSB noted prior to adopting the new rules, the self-attestation option was included because not all people who were vaccinated were advised of the importance of keeping their vaccination card.

- How to prevent unvaccinated employees (who will now be identified by their masks) from being harassed or discriminated against.  The new ETS set the stage for all employees to readily identify their unvaccinated colleagues, which could very well make some of them uncomfortable.  Moreover, only unvaccinated workers must socially distance when eating, which may create additional challenges regarding physical exclusion.  Although vaccination status is not a legally protected characteristic under federal or state employment laws, if unvaccinated employees are ostracized or treated differently, it may result in thorny and time-consuming employee relations issues.  To help preempt this, employers (at least those that do not require vaccinations) may consider issuing clear messaging to all employees regarding the employer’s expectation that all employees be treated with dignity and respect regardless of vaccination status.    

- Whether to proactively poll unvaccinated employees about their desire to use a respirator or wait for them to ask.  Although polling is not required by the new ETS, it may help some employers plan and be able to promptly provide sufficient quantities of N95s, in the proper size, for all employees who wish to use them.

PPSC will continue to monitor future changes to the ETS and will publish additional updates when they occur.  If you have questions about the current changes or how best to implement them, please feel free to contact one of the authors or any PPSC attorney. 

[1] Cal/OSHA has indicated it will post a revised model prevention program for employers next week.

[2] A person is fully vaccinated after 14 days have passed since their second dose of a two-dose COVID-19 vaccine, or a single dose COVID-19 vaccine.

[3] Close contact means being within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period during their high-risk exposure period, i.e., when they were potentially contagious.

  E. Joseph