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.
The Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA) recently published proposed revisions to the COVID-19 Emergency Temporary Standard (ETS). The Standards Board held a meeting on May 20, but ultimately deferred voting on the proposed revisions in order to consider interim guidance from the Centers for Disease Control and Prevention (CDC) lifting physical distancing and face mask requirements for fully vaccinated individuals. The next Board meeting—during which the Standards Board anticipates voting on new proposed revisions—will take place on June 3, 2021.
Key Proposed Changes to the ETS
California’s COVID-19 ETS, which went into effect on November 30, 2020, implements strict and onerous requirements for California employers to safeguard employees from COVID-19 transmission. The key proposed revisions, which may be subject to further modification based on the CDC’s recent guidance, include the following:
- Removes Physical Distancing and Masking Requirements for Fully Vaccinated Employees: To align with CDC guidance, the proposed revised ETS removes the physical distancing and face covering requirements for fully vaccinated employees, so long as all persons in the location are likewise fully vaccinated and asymptomatic.
- Removes Physical Distancing Requirements for Employees Wearing Respirators: As for fully vaccinated employees, employees wearing respirators are exempt from the physical distancing requirements of the ETS. Employers should be mindful, however, that the use of such respirators must be administered in compliance with Cal/OSHA’s respiratory protection standard.
- No Testing or Quarantining for Asymptomatic Recovered or Fully Vaccinated Employees: Asymptomatic employees who have fully recovered from COVID-19 in the last 90 days or those who have been fully vaccinated no longer need to be offered testing or excluded from the workplace after a close contact exposure with a COVID-19 case.
- Reformulates Definition of COVID-19 “Exposed Group”: A COVID-19 exposure would be limited to the “Exposed Group,” defined as “all persons at a work location, working area, or a common area at work, where a COVID-19 case was present at any time during the high-risk exposure period.” This limitation is especially important because it determines the scope and extent of an employer’s obligations under the ETS, which includes investigation and contact tracing, notification, recordkeeping, reporting, and outbreak counts. (Under the current ETS, COVID-19 exposures are drawn along physical bounds to include the “Exposed Workplace,” a definition particularly challenging for employers with large workforces working in a single location, such as a warehouse or distribution center.)
Vote on Proposed Revisions Deferred Until June 3 to Address CDC’s Interim Guidance
The CDC’s May 13 guidance had a direct impact on the Standards Board’s timeline for voting on the proposed revisions to the ETS. On May 19, the day before the Board meeting, Eric Berg, Cal/OSHA’s deputy chief, submitted a memorandum urging the Standards Board to “not vote to approve the current proposal before it, and instead allow [Cal/OSHA] to present a new proposal at a future meeting.” Deputy Chief Berg cited the CDC’s interim guidance and California Health & Human Services Secretary Dr. Mark Ghaly’s May 17 announcement1 that “California plans to implement the CDC’s guidelines around masking to allow fully vaccinated Californians to go without a mask in most indoor settings” as the reasons necessitating the request.
The Cal/OSHA Standards Board held its Board meeting on May 20 and solicited public comment from representatives of labor groups, employers and various industry. Ultimately, however, the Board delayed voting on the current proposed revisions to the ETS to allow time for Cal/OSHA to prepare and present a new proposal in consideration of the CDC’s updated guidance for fully vaccinated individuals.
The Standards Board expects the new proposed changes to be publicly available by May 28 and anticipates voting on the new proposed changes no later than June 3, during the next Board meeting. The target effective date for the proposed changes to the ETS will be June 15, 2021. In the interim, given the significant changes employers may be facing from a revised ETS, employers with questions should consult with counsel specializing in workplace safety and health.
1 The announcement, previously published at California Health & Human Services' website, has since been taken down.