On June 17, 2021, the Cal/OSHA Standards Board adopted revisions to the Emergency Temporary Standards (ETS) for COVID-19 related safety in the workplace. For those following Cal/OSHA’s recent meetings, the revised ETS has been a bit of a roller-coaster ride. In early June, the Standards Board adopted an ETS seen by many as overly restrictive. For example, the ETS would have required continued mask usage for all employees, regardless of vaccination status. One week later, the Standards Board held an emergency meeting where it rejected the previously approved standards. The newly approved ETS continues Cal/OSHA’s policies for worker safety but also eases some of the COVID-19 related restrictions felt by employers and employees over the last 16 months. Below is an overview of some of the new standards:
(1) Masks/Face Coverings
The ETS aligns with Centers for Disease Control (CDC) guidance by removing the mask mandate for most employees who have been fully vaccinated. Mask mandates remain in place for certain areas including the health care industry. Employees who are not fully vaccinated must continue to use face coverings while indoors or in vehicles. The revised ETS language, however, states that fully vaccinated employees may continue to wear face coverings without fear of retaliation. As such, employees cannot enact policies barring use of face coverings in the workplace.
(2) Social Distancing
The revised ETS eliminates the need for social distancing in the workplace. Prior versions of the ETS would have required physical distancing through at least July 31, 2021. Employers, however, are advised to evaluate physical distancing plans in the event of a COVID-19 outbreak of three or more cases, and must implement a distancing plan in the event of a major outbreak of 20 or more cases.
(3) N95 Masks
The ETS requires employers to provide respirators (N95 masks) to all unvaccinated employees upon request. If the ETS is adopted, this requirement will become immediately effective. As such, employers should make efforts to locate and stock N95 masks.
Under the ETS, employers are required to obtain and maintain documentation evidencing that employees have been fully vaccinated. The ETS does not specify what documentation is compliant. Employers, therefore, should consider having employees provide copies of their vaccination cards or having employees sign verifications of vaccination. Cal/OSHA may provide further clarification on what documentation is acceptable.
(5) Notice Requirements
Current guidelines require employers to provide employees with written notice of COVID-19 case in the workplace. The ETS does not alter this requirement but adds a new verbal notice requirement if the employer reasonably knows that the employer did not receive written notice or if the employee has limited literacy in the language in which the notice was provided. Employers may consider providing written COVID-19 notices in an employee’s native language to comply with this requirement.
(6) Exemptions from Exclusion after Exposure and Testing
The ETS provides some relief regarding the exclusion requirements for employees who have been exposed to COVID-19. Fully vaccinated employees who are asymptomatic will no longer need to be excluded from the workplace after exposure to COVID-19. This policy also applied to employees who have had a COVID-19 exposure if the employee had COVID-19 within the last 90-days and remains symptom free. Employers are also exempt from the requirement to provide testing to employees to who have been fully vaccinated or who have had COVID-19 in the last 90-days is the employee are asymptomatic.
(7) Testing for Non-Vaccinated Symptomatic Employees
If an employee is not vaccinated, however, employers are required to make COVID-19 testing available at no cost and during paid time if an employee is suffering from COVID-19 type symptoms.
(8) Exclusion Pay
Employers are still required to provide paid leave to employees who have been excluded from the workplace due to a COVID-19 related exposure. The ETS, however, now affirmatively states that employees may bring a wage and hour claim to recover unpaid “continued earnings.” Employers are also obligated to pay employees their regular rate of pay by the next regular pay date.
(9) Prevention Programs
Employers are still required to maintain a written COVID-19 Prevention Program. The ETS, however, makes some changes to this requirement:
• Employers must review the California Department of Public Heath’s interim guidance of indoor air quality;
• As part of COVID-19 prevention training, employers must provide education to employees about the benefits and effectiveness of the COVID-19 vaccines at preventing COVID-19 and protecting against both transmission and serious health or death;
• Employers must provide information to employees about how to obtain COVID-19 testing and vaccines; and
• For indoor spaces, Employers must evaluate and determine how to maximize ventilation with outdoor air, the highest level of filtration efficiency that is compatible with the existing filtration system, and whether the use of portable or mounted HEPA filtration units will reduce COVID-19.
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Matthew Wallin is a senior associate in the Los Angeles office where he practices labor and employment law. He has extensive experience defending private business and public entities in litigation and advising clients on labor compliance issues.
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