Cal/OSHA’s Revised Emergency Temporary Standards Reduce COVID-19 Related Restrictions In The Workplace

By Swerdlow Florence Sanchez Swerdlow & Wimmer

June 18, 2021

California’s Occupational Safety and Health Standards Board (“Standards Board”) voted on June 17, 2021, to approve its latest set of proposed revisions to the Division of Occupational Safety and Health’s (“Cal/OSHA”) COVID-19 Emergency Temporary Standards (“Revised ETS”). Executive Order N-09-21, signed by Governor Gavin Newsom, makes the Revised ETS effective immediately.
 
This version of the Revised ETS is the latest development in a series of attempts by the Standards Board to pass updated COVID-19 standards that align with guidance from the California Department of Public Health (“CDPH”) and Centers for Disease Control (“CDC”). Notably, the City of Los Angeles has not updated its own COVID-19 Order, which currently requires vaccinated and unvaccinated individuals to wear face coverings and practice physical distancing at work. The City of LA’s Order will likely be revised to align with the LA County Order and the Revised ETS, and we anticipate, but cannot guarantee, that the City of LA will not be enforcing its Order so long as employers comply with the County of LA’s Order and the Revised ETS.
 
In anticipation of the approval of the Revised ETS, Cal/OSHA issued FAQs on June 15, 2021.
 
Key Changes in the Revised ETS
 
Elimination of Physical Distancing Requirement. The Revised ETS eliminates physical distancing requirements in the workplace, except where there is a COVID-19 outbreak in the workplace and the employer determines that physical distancing should be implemented.
 
Fully Vaccinated Employees Are No Longer Required to Wear Face Coverings Indoors. Consistent with the latest guidance from CDC and CDPH, the Revised ETS exempts fully vaccinated employees from wearing face coverings indoors. Employers must ensure that unvaccinated employees wear face coverings while indoors, with limited exceptions including, when alone in a room or when eating or drinking while maintaining physical distancing.
 
Respirators Must Be Made Available Upon Request. Employers must provide approved respirators for voluntary use to unvaccinated employees, upon request. Respirators include only those respiratory devices approved by the National Institute for Occupational Safety and Health, such as an N95 mask. Initially, an employer may either stock respirators to be available at request or poll workers who are not fully vaccinated to determine how many of them wish to wear respirators. Once the employer has established which employees wish to wear respirators, it should have enough on hand to fulfill reasonably foreseeable requests on demand. The respirators provided must be the right size, and the employee must receive instruction on how to obtain a good seal.
 
Employers Must Document Vaccination. Employers must have documentation for an employee to be considered “fully vaccinated” under the Revised ETS. Therefore, an employer must record the vaccination status for any employee not wearing a face covering indoors. The FAQs indicate that the following are acceptable options for vaccination documentation:
1)    Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy;
2)    Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself; or
3)    Employees self-attest to vaccination status and employer maintains a record of who self-attests.
 
The employer’s record of employee vaccination status must be kept confidential.
 
Pay For Excluded Employees. Employees who are excluded from work because they have COVID-19 (irrespective of whether it was contracted at work), or had a close contact at work to a COVID-19 case are entitled to earnings and benefits continuation unless they are receiving disability payments, workers’ compensation payments, or temporary disability payments, or if the employer can prove the close contact is not work related. Notably, Employees no longer need to be “able and available to work” to be entitled to exclusion pay. And, if the employer decides an exception to earnings continuation applies, the employer must inform the employee of the denial and the applicable exception.
 
COVID-19 Testing Requirements. A new requirement for employers is that they must offer testing at no cost to symptomatic unvaccinated employees during paid time, regardless of whether there is a known exposure to COVID-19. No cost testing during paid time must also be offered to unvaccinated and symptomatic vaccinated employees after an exposure, to unvaccinated employees in an outbreak, and to all employees in a major outbreak.
 
Immediate Next Steps. It is time to revisit your COVID-19 protocols and update your COVID-19 Prevention Plans and trainings. Start documenting which employees are fully vaccinated and are no longer required to wear face coverings. In addition, determine whether and how many unvaccinated employees will request respirators and ensure you have a sufficient number, in correct sizes, in stock.
 
The twists and turns of Cal/OSHA’s response to the COVID-19 pandemic is challenging to navigate. Contact your SFSS&W attorney if you have any questions regarding the Revised ETS and its impact on your workplace.