Round 2: Cal/OSHA Revises Emergency Temporary Standards for COVID-19 Prevention

June 10 Update: Please click here for the latest news.

While many employers were expecting that the California Division of Occupational Safety and Health (“Cal/OSHA”) would follow the lead of the Center for Disease Control to do away with most masking and physical distancing requirements for vaccinated people, Cal/OSHA is taking a much more conservative approach. While the revised rules relax some restrictions, the revised rules will add new required protections for unvaccinated employees.

On June 3, 2021, the Occupational Safety and Health Standards Board adopted Cal/OSHA’s revised COVID-19 prevention emergency temporary standards (“ETS”). As some will recall, California approved the original Cal/OSHA emergency temporary standards on COVID-19 infection prevention in November 2020. The new ETS is currently under review by the Office of Administrative Law, and if approved by June 13, will go into effect on June 15, 2021.

Employers should note that the revised ETS includes the following requirements, which apply to private employers and public entities:

Respirators:

• After July 31, 2021, employers must provide respirators for voluntary use to all employees who are not fully vaccinated.
• Respirators are defined as “a respiratory protection device approved by the National Institute for Occupational Safety and Health (“NIOSH”) to protect the wearer from particulate matter.”
  • Examples of proper respirators under this definition include an N95 filtering face piece respirator.
• Whenever respirators are provided for voluntary use under the revised ETS, they must be trained and instructed on the following:
  • (1) How to properly wear the respirator provided;
  • (2) How to perform a seal check according to the manufacturer’s instructions each time a respirator is worn, and the fact that facial hair interferes with a seal.
• Note that while the ETS are silent on how long an N95 mask may be used, most FDA-cleared N95 respirators are labeled as “single-use” disposable devices. Also, the Department of Industrial Relations’ educational materials regarding proper N95 respirator use indicate that masks should be discarded at least at the end of each day.

Physical Distancing:

• Physical distancing measures will remain in place until at least July 31, 2021.
• Employers must comply with either of the following for all employees working indoors or at outdoor mega events (a new term, defined as “an event that includes over 10,000 participants or spectators outdoors”):
  • (1) All employees must be separated from other persons by at least six feet, except for employees who are wearing respirators.
  • (2) All employees who are not fully vaccinated must be provided respirators for voluntary use.
• After July 31, 2021, physical distancing is no longer required (except during outbreaks), but employers must provide all unvaccinated employees with respirators for voluntary use.

Face Coverings:

• Face coverings are still required of all employees unless any of the following apply:
  • (1) An employee is alone in a room.
  • (2) All persons in a room are fully vaccinated and do not have COVID-19 symptoms.
• “Fully vaccinated” requires that the employer has documentation showing the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Vaccines must be FDA approved or have an emergency use authorization from the FDA.
• Face coverings include surgical mask, a respirator worn voluntarily, and tightly woven fabrics with at least two layers.
• Employers must provide training and guidance on the importance of face coverings, including the fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective.

Testing

• Employers must offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no indication that the exposure was work-related.

Exclusion from the Workplace

• Fully vaccinated workers who test positive for COVID-19 still must be excluded from work for 10 days after the positive test, even if they are asymptomatic.

Takeaways for Employers

• It is likely that California will adopt the revised ETS next week. Employers should plan to update their COVID-19 prevention plans. If employers do not have one already, one should be prepared, as they are required of all employers.
• When drafting policies on how and when face covering requirements will remain in place, remember that the U.S. Equal Employment Opportunity Commission considers information about an employee’s COVID-19 vaccination status to be confidential medical information under the Americans with Disabilities Act.
• Employers should plan for how they will collect and secure vaccination records.
• If the new rules take effect, Cal/OSHA is likely to issue FAQs and other interpretative guidance to help employers to navigate these issues.

Meyers Nave can assist employers to comply with these new requirements.