The Los Angeles County’s Department of Public Health issued a press release on June 28, 2021 strongly recommending that everyone, regardless of their vaccination status, wear masks indoors in public places, including workplaces, to protect against the spread of the highly transmissible Delta variant of COVID-19.  This change was prompted by the drastic increase in positive COVID-19 cases reported in the County on June 28, 2021.  The use of masks is recommended for indoor settings such as grocery or retail stores, theaters and family entertainment centers and workplaces (when you do not know everyone’s vaccination status).  Companies with employees who work within the County of Los Angeles should contact experienced counsel with any questions.

On June 17, the Cal-OSHA board approved a set of revisions to the Emergency Transmission Standard (ETS) for COVID-19 issued on June 11 (June 11 Revisions). Pursuant to Governor Newsom’s Executive Order (see link), the new revisions take effect as soon as they are filed with the California Secretary of State and conform Cal-OSHA workplace standards to those previously issued by the California Department of Public Health (CDPH) and the Centers for Disease Control (CDC). The June 11 Revisions make two significant changes to the amended regulations approved on June 3 and then withdrawn on June 9. (See link for prior guidance on June 3 revisions). First, the June 11 Revisions eliminate social distancing requirements in non-outbreak situations. Second, fully vaccinated employees are not required to wear masks. Below we provide greater detail on the major changes between the June 11 Revisions and the prior withdrawn draft:

  • Social distancing – No social distancing is required in the workplace in non-outbreak situations regardless of vaccination status.
  • Masks – Fully vaccinated employees will no longer be required to wear masks at the workplace except in limited circumstances as defined by CDPH (see link). Employers must continue to provide face coverings to all employees who are not fully vaccinated. In addition, employers must ensure that not fully vaccinated employees wear face coverings indoors and in vehicles. Employers also must implement measures to communicate their face mask requirements to non-employees on their premises. Unfortunately, neither Cal-OSHA nor any other governmental body has provided guidance on what the employer’s obligation is to check vaccination status and/or police masking of not fully vaccinated employees.

Face coverings are defined as a “surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers. A face covering has no visible holes or openings and must cover the nose and mouth.”

Please note employers still must provide N95 masks upon request to employees who are not fully vaccinated and who are working indoors or in vehicles. Employers should consult this link for assistance in procuring N95 masks.

  • Fully vaccinated – The definition of “fully vaccinated” has been expanded to include COVID-19 vaccines approved for emergency use by the World Health Organization. These include COVID-19 vaccines that are not currently approved by the Food and Drug Administration.
  • Additional outbreak measures – Social distancing and masking are required after an outbreak for all employees in the exposed group. In addition, employers must give notice to employees in the exposed group of their right to request a respirator for voluntary use under subsection 3205(c)(7)(D)2, if they are not fully vaccinated.

We recommend continually monitoring Cal/OSHA’s FAQ page. Moreover, although not expressly mandated by the June 11 Revisions, we recommend updating your company’s COVID-19 prevention plan to ensure compliance and to provide notice to employees.

The June 11 Revisions 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 CDPH guidance.

On June 11, 2021, the California Department of Public Health issued a State Public Health Officer Order and Governor Gavin Newsom issued two related Executive Orders rolling back COVID-19 restrictions.  More information on these orders and announcement can be found below.

  1. On June 11, 2021, the California Department of Health issued the State Public Health Officer Order of June 11, 2021, mandating limited and temporary health requirements as of June 15, 2021.  The order replaces the previous pandemic public health orders with limited requirements related to face coverings and mega events, as well as settings with children and youth, as follows:
    • Fully vaccinated individuals do not need to wear masks, except for in the following settings where masks are required for everyone:
      1. On public transit (including, but not limited to, airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares) and in transportation hubs (including, but not limited to, airport, bus terminal, marina, train station, seaport or other port, subway station, or any other area that provides transportation));
      2. Indoors in K-12 Schools, childcare, and other youth settings* (*This may change as updated K-12 school guidance is provided by the CDC);
      3. Healthcare settings (including, but not limited to, Long terms care facilities);
      4. State and local correctional facilities and detention centers; and
      5. Homeless shelters, emergency shelters and cooling centers.
    • Unvaccinated individuals are still required to wear masks and follow social distancing requirements in indoor public settings and businesses (including, but not limited to, retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public).

Continue Reading California Issues New Public Health Officer Order and Executive Orders Rolling Back COVID-19 Restrictions

On June 10, 2021, OSHA updated general industry guidance for COVID-19 that is applicable to all workplaces. OSHA’s general industry guidance, which is advisory and creates no binding legal requirements, focuses on unvaccinated workers and others who are “at risk” (i.e., immunocompromised individuals). OSHA specifically states, “[u]nless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure.” Many employers are already implementing the actions and best practices recommended by OSHA for unvaccinated workers and at-risk workers. The Updated General Industry Guidance can be found here: Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVD-19 in the Workplace.

The OSHA guidance focuses on unvaccinated and at-risk workers. OSHA included no recommendations that specifically apply to fully vaccinated workers (i.e., they can go without face coverings and physical distancing whether indoors or outdoors). OSHA guidance allows unvaccinated employees to go without a face covering if physically distanced.

Continue Reading OSHA Update of General Industry Guidance

OSHA issued the COVID-19 Healthcare Emergency Temporary Standard (ETS) on June 10, 2021. The full ETS can be found here: Subpart U — COVID-19 Emergency Temporary Standard (osha.gov).

The ETS applies to workplace settings where professional healthcare practitioners provide healthcare services or healthcare support services. The ETS primarily applies to hospital workplaces. Many other workplace settings where professional healthcare practitioners provide healthcare services or healthcare support services can be exempted from coverage of the ETS if they meet certain criteria, including having all employees fully vaccinated, screening all non‑employees for COVID-19 symptoms before entry, and prohibiting entry for persons with suspected or confirmed COVID-19 cases. If there is a healthcare setting embedded within a non‑healthcare setting, such as medical clinics within manufacturing facilities, the ETS may apply only to the embedded healthcare setting and not the remainder of the non-healthcare setting.

Continue Reading OSHA Issues COVID-19 ETS for Healthcare Settings

After four hours of public comment and consideration, the Cal-OSHA Board voted to withdraw the amended ETS approved on June 3.  Instead, the Board will publish a third revised set of revisions to the ETS and vote on a new amended ETS at their hearing on June 17.

The main reason for withdrawing the amended ETS is to align the regulations with the guidelines released yesterday by the California Department of Public Health (see link).  Employers must follow the current ETS until an amended ETS is passed and takes effect.   If the Board votes to approve the amended ETS at their June 17 meeting, it is likely the amended ETS will come into effect on June 28.

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. Continue Reading Cal-OSHA Approves Revised COVID-19 Workplace Rules

On May 18, 2021, the Los Angeles County Board of Supervisors passed an urgency ordinance related to paid leave for COVID-19 vaccinations. The law only applies to employers in the unincorporated areas of Los Angeles County. It provides additional time off for full- and part-time employees who have exhausted time off under California’s 2021 COVID-19 Supplemental Paid Sick Leave and who perform any work in the unincorporated areas of the County. Full-time employees who meet certain conditions are entitled to use up to 4 hours of additional paid time off per vaccination injection. Part-time employees are entitled to a prorated portion of additional paid time off. Employers must post written notice of the law in a conspicuous place once it becomes available on the Los Angeles County Department of Consumer and Business Affairs website. The ordinance will sunset on August 31, 2021.

Companies with questions about the County of Los Angeles’ Order should contact experienced counsel.

On May 28, 2021 the U.S. Equal Employment Opportunity Commission updated its What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The EEOC also issued a new resource titled Federal Laws Protect You Against Employment Discrimination During the COVID-19 Pandemic which “explain[s] how federal employment discrimination laws protect workers during the pandemic.” These two publications were prepared before the CDC updated its guidance for fully vaccinated individuals on May 13, 2021 and “do not specifically address that new guidance.” As set forth by the EEOC in its press release, “the key updates to the technical assistance” are: Continue Reading EEOC Issues Updated COVID-19 Materials

On May 13, 2021, the CDC once again updated its guidance (here and here), significantly relaxing its standards for fully vaccinated individuals. “Fully vaccinated individuals” means that two weeks or more have passed since the person received either the second dose of a two-dose COVID-19 vaccine or one dose of a single-dose vaccine. Immunocompromised people, even if fully vaccinated, should consult their healthcare providers about the applicability of this new guidance.

The updated guidance provides that fully vaccinated individuals can:

  • Resume activities they engaged in prior to the pandemic without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
  • Refrain from testing following a known exposure unless they are residents or employees of a correctional or detention facility or a homeless shelter.

The CDC provided an updated infographic to help explain activities that unvaccinated and fully vaccinated people may engage in with corresponding risk levels. Continue Reading CDC Significantly Relaxes Mask Requirement For Fully Vaccinated Individuals