On June 3, 2021, California’s Occupational Safety & Healthy Standards Board approved significant revisions to the initial COVID-19-related Emergency Temporary Standards (ETS) originally implemented on November 19, 2020 (see Perkins Coie’s previous blog post here). The amended regulations can be found here and will likely become effective on June 15, 2021, pending review by the California Office of Administrative Law—to be completed within 10 days—and will stay in place for 180 days.
Importantly, physical distancing will be required in most indoor workplace situations until July 31 and masking will be required unless all employees at a worksite are fully vaccinated for the foreseeable future. Notably, the revised Cal/OSHA regulations are far more conservative than the Centers for Disease Control and Prevention (CDC) guidance or even California law after the mask mandate expires on June 15. The Cal/OSHA board only approved the revised ETS after a marathon public comment session and an initial vote in which the board rejected the revisions. However, after further debate the board approved the revisions with the expectation that additional amendments will be proposed by a newly created three-member subcommittee at the board’s next meeting on June 17.
The most notable revisions include:
- Updated Physical Distancing Requirements. The revisions specify that the physical distancing requirements remain in effect until July 31, 2021, for all employees working indoors or at outdoor mega events unless either (1) employees wear respirators or (2) those that are not fully vaccinated are provided NIOSH-approved respirators (such as N95s) by the employer. Notably, physical distancing is not required where all employees at a worksite are fully vaccinated.
- Respirators. Beginning July 31, 2021, employers are required to provide respirators to all employees working indoors who are not fully vaccinated. The revisions define a “respirator” as “a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.” The CDC has published a list of approved respirators here (KN95 masks do not qualify as N95 masks). Please note that the board openly discussed lifting the N95 mask mandate in the near future due to the hardship and expense required for businesses to comply.
- Revised Definition of Face Coverings. The revisions redefine face coverings to include “a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or nonwoven material of at least two layers.” The revisions specifically exclude the following from the definition of a face covering: a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.
In addition to redefining the scope of face coverings, the revisions also provide that if an employee is alone in a room, or if all persons in a room are fully vaccinated and do no present symptoms of COVID-19, face coverings are not required. Moreover, if employees are outdoors, fully vaccinated, and present no symptoms of COVID-19, face coverings are not required.
Although the updated regulations are consistent with the latest CDC guidance (see prior post here), the relaxed regulations are inconsistent with the current statewide California mask mandate, which is set to expire June 15. Moreover, many counties have vaccination and mask guidelines that differ further. Employers should consult experienced counsel to develop compliant workplace policies within this landscape.
- Exemptions From Workplace Exclusions for Those With COVID-19 and Those Who Have Had Close Conduct. The revisions state that employers shall continue to ensure that COVID-19 cases are excluded from the workplace. All positive-testing COVID-19 cases who are asymptomatic must be excluded from the workplace for 10 days, including fully vaccinated employees.
The revisions further state that employers shall exclude from the workplace employees who had a close contact with the following exceptions: (1) fully vaccinated employees who do not develop COVID-19 symptoms; and (2) COVID-19 cases who returned to work and remained free of COVID-19 for 90 days, or COVID-19 cases who never developed COVID-19 symptoms for 90 days following the first positive test.
- COVID-19 Testing. Effective immediately, employers shall make COVID-19 testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated, during employees’ paid time.
However, employers do not have to provide COVID-19 testing to fully vaccinated employees who had a close contact with a potentially exposed employee.
- Outbreak Testing. The revisions replace the concept of an “exposed workplace” with that of an “exposed group” in an attempt to narrow the definition of a worksite. While some exceptions apply, an “exposed group” means all persons at a work location, working area, or a common area at work (which includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas) where a COVID-19 case was present at any time during the high-risk exposure period. If there are three or more COVID-19 cases in an exposed group, outbreak testing would kick in.
- Notification of COVID-19 Case in the Workplace: If an employer is notified of a potential COVID-19 outbreak in the workplace, the employer must give written notice—within one business day—in a form readily understandable by employees that people at the worksite may have been exposed to COVID-19. If an employer should reasonably know that an employee has not received the notice, or has limited literacy in the language used in the notice, the employer shall provide verbal notice, as soon as practicable, in a language understandable by the employee.
- Additional Outbreak Precautions. The revisions require employers to install High Efficiency Particulate Air (HEPA) filtration units following an outbreak.
- Outdoor Mega Event. Defined as an event that includes over 10,000 participants or spectators outdoors and may include conventions, shows, outdoor nightclubs, concerts, sporting events, theme parks, fairs, festivals, large races, and parades. Starting July 31, 2021, the new regulations require respirators to be provided to all employees who are not fully vaccinated at such events. This limits employers’ ability to hold large gatherings or participate in conventions/conferences in California for the foreseeable future.
- Required Notification of Vaccine Benefits. Employers’ training on vaccinations must include the fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death. The board also discussed implementing further revisions in the future to clarify guidelines for employers to find out the vaccination status of their employees.
- “Fully Vaccinated” Limitations. Although not a change from the initial ETS, the definition of “fully vaccinated” is limited to vaccines which have received emergency use authorization by the FDA. This excludes vaccines which have been only approved in foreign jurisdictions such as Astra Zeneca or Sinopharm vaccine (neither of which have been approved by the FDA).
Practical Guidance for Employers
We recommend continually monitoring Cal/OSHA’s FAQ page. Moreover, although not expressly mandated by the proposed revisions, we recommend updating your company’s COVID-19 prevention plan as soon as the amendments become effective to ensure compliance.
The revised ETS regulations are just one piece of a broader environment of regulations and guidance from multiple local, state and federal agencies. Employers should consult experienced counsel to develop plan to comply with the updated ETS, as well as address new CDC and California Department of Public Health guidance.