Update: Cal/OSHA revised their Model COVID-19 Prevention Program (CPP) on June 29, 2021 to reflect the changes in the newly revised COVID-19 ETS. Access the newly revised Model CPP here.

On June 17, 2021, Cal/OSHA’s Occupational Safety & Health Standards Board (OSHSB) approved significant revisions to the Emergency Temporary Standards for COVID-19 Prevention (ETS), which include relaxed masking and physical distancing requirements. These revisions took effect immediately upon filing with California’s Secretary of State, per an executive order from Governor Newsom.

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Cal/OSHA has also released a set of FAQs accompanying the revised ETS, which clarify how employers may document employees’ vaccination status and comply with voluntary respirator requirements, amongst other concerns. Learn more about the most significant revisions to the ETS and ETS FAQs below.

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Background

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As a reminder, California Department of Public Health (CDPH) guidance regarding California’s June 15 “reopening” primarily applies to customers and the general public; California employers and employees are largely subject to a different set of COVID-19-related health and safety standards in the workplace, which are drafted by Cal/OSHA and codified in its ETS.

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Earlier this month, OSHSB voted to withdraw updates to the COVID-19 ETS passed on June 3, 2021 in order to bring Cal/OSHA’s guidance in line with CDC and CDPH recommendations. The revised ETS aligns with CDPH recommendations for face coverings and social distancing, and implements enhanced COVID-19-prevention protocols in the workplace.

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Under normal circumstances, the revised ETS would have taken effect on or before June 28, after approval from California’s Office of Administrative Law. However, Governor Newsom signed an executive order shortly after OSHSB’s June 17 meeting making these revisions effective immediately, upon filing with California’s Secretary of State.

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Most Significant Revisions to the ETS

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The newly revised ETS holds many exemptions for “fully vaccinated” workers. Workers are considered fully vaccinated under Cal/OSHA’s ETS when their employer has documented that the person has 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. In a change from the June 3 revisions, these vaccines must be either FDA approved, have emergency use authorization from the FDA, or, for persons fully vaccinated outside of the United States, be listed for emergency use by the World Health Organization (WHO).

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The FAQs that accompany the revised ETS offer several suggestions detailing how employers may document employees’ vaccination status, including:

• Employees provide proof of vaccination (vaccine card, image of vaccine card, or health care document showing vaccination status) and the employer maintains a copy,
• Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself, or
• Employees self-attest to vaccination status and the employer maintains a record of who self-attests.

If an employee declines to submit proof of vaccination during an employer’s documentation process, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee. The FAQs further specify that employers are not prohibited by Cal/OSHA from requiring all employees to wear face coverings in lieu of implementing a documentation process.

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Face Coverings/Masking

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Cal/OSHA has eliminated all face covering requirements outdoors, except in certain outbreak settings. However, employers should train workers on CDPH recommendations for outdoor use of face coverings, and should be mindful of certain settings in which the CDPH requires face coverings regardless of vaccination status, such as public transit, childcare, and healthcare settings.

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Fully Vaccinated Employees: Under the updated regulations, fully vaccinated employees are no longer required by Cal/OSHA to wear face coverings in the workplace, regardless of other individuals’ vaccination status or whether the workplace is indoors or outdoors. However, fully vaccinated employees must be allowed to continue wearing face coverings in the workplace without fear of retaliation.

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Unvaccinated Employees: Employees who are not fully vaccinated must be provided with and properly wear face coverings when they are working indoors or in a vehicle, with the following exceptions:

• (1) When an employee is alone in a room or vehicle,
• (2) While eating or drinking at the workplace, provided six feet of physical distancing and maximum feasible ventilation with outdoor air,
• (3) Employees wearing respirators required by the employer and used in compliance with Cal/OSHA’s respirator standard,
• (4) Employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person, and
• (5) Specific tasks which cannot feasibly be performed with a face covering (with some additional caveats).

Employees exempt from face covering requirements due to medical conditions, mental health conditions, or disabilities are still required to wear effective, non-restrictive alternatives, such as face shields with drapes at the bottom, if their condition permits it. Aside from fully vaccinated employees, any employee not wearing a face covering due to the exemptions listed above in (4) and (5) and not wearing a non-restrictive alternative, when applicable, must maintain six feet of physical distancing unless the unmasked employee is tested at least weekly for COVID-19 during paid time and no cost to the employee.

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Even when face coverings are not required, employers must provide face coverings to their employees upon request, at no cost to the employee, regardless of vaccination status.

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Acceptable face coverings include surgical masks, medical procedure masks, respirators worn voluntarily, or tightly woven fabric or non-woven material of at least two layers, and do not include scarves, ski masks, balaclavas, bandanas, turtlenecks, collars, or single layers of fabric. Face coverings must not have visible holes or openings and must cover the nose and mouth.

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Respirators

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In a shift from the June 3 revisions, Cal/OSHA will require employers to provide respirators for voluntary use (instead of another acceptable face covering) to unvaccinated employees who are working indoors or in vehicles with more than one person upon the employees’ request. Whenever an employer makes respirators for voluntary use available, either at an unvaccinated employee’s request or in certain outbreak settings, employers must encourage their use, ensure that employees are provided with a respirator of the correct size, and provide basic instruction on their proper use. This provision took effect immediately upon the revised ETS’s effective date.

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In its FAQs, Cal/OSHA has provided further guidance on how employers may provide respirators “upon request.” Cal/OSHA suggests that employers may “initially stock respirators and offer them to employees, or poll workers to determine which employees wish to be provided a respirator before obtaining them.” After an employer has determined that it has employees who wish to wear respirators, the employer should maintain a supply of respirators of the correct size and type to fulfill “reasonably foreseeable requests” upon demand. Employers may also permit employees to select and purchase their own respirators if the employer reimburses the employee in a timely manner. Employers are under a continuing obligation to provide requested respirators to unvaccinated employees “as soon as possible.”

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For more information on how to purchase and when to replace respirators, navigate to the “Respirators” section in the ETS FAQs.

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Physical Distancing

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Most physical distancing requirements have been eliminated immediately upon the ETS’s effective date, in line with CDPH Guidance. However, employers may need to reinstitute physical distancing protocols when there is a qualifying “outbreak” in the workplace.

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Notice and Training Requirements

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The ETS currently requires employers to provide employees with written notice when employees at the worksite may have been exposed to COVID-19. The updated ETS also requires employers to provide verbal notice in a language understandable by the employee when the employer should reasonably know that an employee either has not received the written notice or has limited literacy in the language used in the notice.

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Employers must also provide training to their employees detailing their COVID-19 policy; their policy for providing respirators; when respirators are provided for voluntary use, how to properly wear respirators; face covering requirements; and other related topics.

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Testing

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Employers are generally no longer required to make COVID-19 testing available to employees who are asymptomatic and either fully vaccinated or naturally immune (essentially, had COVID-19 within the last 90 days, and have returned to work pursuant to Cal/OSHA’s requirements). The FAQs clarify that employers are required to offer COVID-19 testing at no cost to the employee during paid time to:

• Symptomatic, unvaccinated employees, regardless of whether there is a known exposure,
• Unvaccinated employees after an exposure,
• Vaccinated employees after an exposure if they develop symptoms,
• Unvaccinated employees in an outbreak, and
• All employees in a major outbreak.

Exclusion from the Workplace

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The ETS requires employers, in many circumstances, to exclude COVID-19 cases and employees who had a close contact with a COVID-19 case from the workplace. Employees are exempt from this exclusion requirement if they are either fully vaccinated before the close contact and do not develop COVID-19 symptoms, or naturally immune.

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Employers should note that exclusion pay is subject to existing wage payment obligations, and must be paid at the employee’s regular rate of pay no later than the regular pay day for the pay period(s) in which the employee is excluded. Cal/OSHA emphasizes that unpaid exclusion wages are subject to enforcement.

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Ventilation Systems

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Employers are now required to evaluate ventilation systems in the workplace to maximize outdoor air and increase filtration efficiency, and evaluate the potential need for additional air cleaning systems.

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Revised Definitions

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Close Contact

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“Close contact,” for the purposes of the revised ETS, is defined as being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the “high-risk exposure period” of the COVID-19 case, regardless of the use of face coverings. Employees have not had a close contact if they wore a respirator required by the employer and used in compliance with Cal/OSHA’s respirator standard, whenever they were within six feet of the COVID-19 case during the high-risk exposure period.

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Cal/OSHA specifies the conditions under which employees may return to work, including after a “close contact” with COVID-19, on page 13 of the revised ETS.

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Exposed Groups

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The newly revised ETS exchanges the term “exposed workplace” for “exposed group,” which is defined as:

“All employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period. A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.”

Exposed groups may include the employees of more than one employer. The following situations are exempt from this definition:

• For the purpose of determining the exposed group, a place where persons momentarily pass through while everyone is wearing face coverings, without congregating, is not a work location, working area, or a common area at work.
• If the COVID-19 case was part of a distinct group of employees who are not present at the workplace at the same time as other employees, for instance a work crew or shift that does not overlap with another work crew or shift, only employees within that distinct group are part of the exposed group.
• If the COVID-19 case visited a work location, working area, or a common area at work for less than 15 minutes during the high-risk exposure period, and the COVID-19 case was wearing a face covering during the entire visit, other people at the work location, working area, or common area are not part of the exposed group.

Outbreaks

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Outbreaks occur in the workplace when three or more employee COVID-19 cases within an “exposed group,” as defined above, visited the workplace during their high-risk exposure period at any time during a 14-day period.

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During outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status. Employers are required to evaluate whether it is necessary to implement physical distancing and barriers during an outbreak.

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“Major COVID-19 outbreaks,” which occur when 20 or more employee COVID-19 cases in an exposed group visit the workplace during their high-risk exposure period within a 30 day period, are subject to more stringent testing, physical distancing, and other requirements, as discussed on page 18 of the revised ETS.

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Resources for California Employers

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As most local governments (such as Los Angeles County) have rescinded most of their industry-specific COVID-19 prevention protocols, in line with California’s Beyond the Blueprint framework, California employers should primarily monitor Cal/OSHA’s ETS and ETS FAQs for continuing COVID-19-related guidance.

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View the full text of the revised ETS, which went into effect on June 17, 2021, here.

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View the ETS’s accompanying FAQs here.

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View Cal/OSHA’s Respiratory Protection Standard (Cal. Code. Regs., tit. 8, section 5144) here.

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If you have questions regarding the application of Cal/OSHA’s updated ETS to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick Maloney, Lisa Von Eschen, Samantha Botros, or Nicholas Grether.

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