Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: On June 9, 2021, Cal/OSHA withdrew the Revised ETS referenced in this publication. Employers with California operations should refer to this discussion of the November 20, 2020 ETS, which remains in effect at this time.
On June 3, 2021, the Occupational Safety and Health Standards Board (Standards Board) voted to readopt proposed revisions to the Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (“Revised ETS”). The Standards Board initially scheduled a vote on proposed changes to the current ETS on May 19, 2021, but deferred to June 3, 2021 to consider then-interim guidance from the CDC and California Health & Human Services. After the June 3 vote, the proposed revisions were sent to the Office of Administrative Law (OAL) for approval. Once approved, they will take effect no later than June 15.
- “Exposed Group” Replaces “Exposed Workplace” for COVID-19 Exposures: A COVID-19 exposure will now be drawn along the lines of the “Exposed Group,” defined as “all employees at a work location, working area, or common area at work where an employee COVID-19 case was present at any time during the high-risk exposure period.” (Emphasis added.) (Under the current ETS, COVID-19 exposures are drawn along physical bounds to include the “Exposed Workplace,” a definition that was particularly challenging for employers with large workforces working in a single location, such as a warehouse or distribution center.) Of significance, the Revised ETS’ delineation of a COVID-19 exposure to the “Exposed Group” will dictate (and arguably limit) the scope and extent of an employer’s obligations to investigate, contact trace, notify, report and maintain records and outbreak counts. Importantly, the reference to “employees” should not be interpreted as referring only to a worker’s payroll status (e.g., as a regular employee or contingent worker); the Revised ETS specifies that “[a]n exposed group may include the employees of more than one employer.”
- Fully Vaccinated Employees Still Required to Wear Face Coverings With One Limited Exception: Departing from the CDC’s broader guidance, the Revised ETS will exempt vaccinated employees from face coverings only when they are in a room with other fully vaccinated, asymptomatic individuals. However, the exemption will not apply in mixed workforces or settings where both vaccinated and unvaccinated individuals are present, and all personnel must wear face coverings in such settings regardless of vaccination status.
- Physical Distancing Still Required in Most Settings: Through July 31, 2021, employers have two options to comply with the Revised ETS’ physical distancing requirements: (1) follow masking and physical distancing requirements mandated under the current ETS or (2) provide filtering facepiece respirators for voluntary use to all employees who are not fully vaccinated. After July 31, 2021, the Revised ETS omits any physical distancing requirements, which appears to signal Cal/OSHA’s intent to have all employees either fully vaccinated or using respirators by this time. Realistically, however, not all employees at any given worksite will be fully vaccinated, and even those provided respirators can still refuse them. Given the practical challenges in ensuring 100% vaccination and/or respirator use, employers unable to achieve these milestones should consider continuing to enforce physical distancing as a means of limiting COVID-19 exposures in the workplace.
- Employers Will Need to Stockpile Respirators: Signaling Cal/OSHA’s intent to encourage the widespread use of respirators for unvaccinated employees, the Revised ETS requires that “[s]tarting July 31, 2021, employers shall provide respirators for voluntary use in compliance with [Cal/OSHA’s Respiratory Protection Standard] to all employees working indoors or at outdoor mega events who are not fully vaccinated.” Of note, employers are only required to provide respirators, not mandate their actual use. In so doing, however, employers must have their employees complete a Voluntary Appendix D Acknowledgment for voluntary respirator use.
- Vaccination Documentation: The Revised ETS’ definition of “Fully Vaccinated” requires that “the employer has documentation” of vaccinations in order to avail itself of provisions specially tailored to vaccinated employees. The Revised ETS does not specify how or on what media an employer must maintain such documentation, which suggests that more than one form of documentation would be acceptable to Cal/OSHA in proving an employee’s vaccination status. Employers must address potential privacy and recordkeeping implications in maintaining such records in light of workplace safety and health, employee confidentiality, and equal employment opportunity (EEO) requirements.
Since the adoption of the current ETS, Cal/OSHA has prioritized enforcement of COVID-19 inspections and investigations, issuing hundreds of COVID-19 citations to employers throughout California, some of which carry significant six-figure penalties. Even with steadily decreasing infection rates and hospitalizations due to COVID-19, Cal/OSHA will continue to maintain its vigorous enforcement strategy through the Revised ETS, and is not adopting the more permissive approach that other states have taken following the CDC’s May 13 guidance for fully vaccinated individuals. With those considerations in mind, employers with operations in California should revisit their COVID-19 protocols for compliance and update their written COVID-19 Prevention Plans to account for the new provisions in the Revised ETS.