Seyfarth Synopsis: As of January 14, 2022, California employers must ensure that their COVID-19 health and safety protocols are compliant with Cal/OSHA's Latest COVID-19 Prevention Emergency Temporary Standards. The U.S. Supreme Court's recent ruling on the nationwide Federal OSHA ETS vaccine mandate does not impact these separate California-specific requirements, which employers must still comply with here.
Once The Rage, SCOTUS Voted To Stay Enforcement Of Federal OSHA's ETS
As we reported, on January 13, 2022, the U.S. Supreme Court blocked Federal OSHA's mandate slated to apply to businesses with 100 or more employees nationally. The federal mandate requires employees to either be fully vaccinated or to wear masks and take COVID-19 tests weekly, among other requirements. As you may recall, immediately after the mandate was issued, many businesses, local governments, and private interest groups fought to put the mandate on hold.
Ultimately, SCOTUS ruled that OSHA had exceeded its power because regulating overall public health was outside the agency's authority to regulate workplace safety, and has sent the mandate challenges back to the Sixth Circuit for further litigation on the merits. Despite this ruling, U.S. Secretary of Labor Marty Walsh indicated that "OSHA will do everything in its existing authority to hold businesses accountable for protecting workers," regardless of the litigation.
But, just because the nationwide federal OSHA mandate seems to be anything but everlasting, the beat goes on in California where the Cal/OSHA ETS is in full swing.
Cal/OSHA's ETS Keeps Pounding A Rhythm To The Brain
SCOTUS' recent decision regarding the nationwide OSHA mandate does not impact Cal/OSHA's enforcement of its own COVID-19 Prevention Emergency Temporary Standards ("ETS") ETS, and California employers are required to be in compliance with the newly revised ETS as of January 14, 2022.
As we reported, on December 16, 2020, the Cal/OSHA Standards Board voted to readopt the ETS with changes that took effect on January 14, 2022, and will remain in place through April 14, 2022. So, you need to make sure that your company is updating its COVID-19 Prevention Plan in line with the new guidelines, as appropriate. Some of the highlights are:
- The definition of a "COVID-19 test" excludes tests which are both self-administered and self-read, so employers may not rely on the results of an employee's at-home rapid test to comply with the testing requirements of the ETS.
- "Fully vaccinated" for purposes of the ETS, includes mixing and matching of vaccines so long as the vaccines are FDA approved or listed for emergency use by the WHO (e.g. two doses of a Moderna-NIAID vaccine, and one dose of a Pfizer-BioNTech booster).
- Testing must be provided to any workplace close contact employees, regardless of vaccination status, during paid working time and at no cost to employees.
- Outbreak testing can't exclude fully vaccinated employees.
- Updated isolation and quarantine guidelines related to CDPH and CDC updates, which vary depending on vaccination status and test results, available in detail here.
- And, in clarifying FAQs, Cal/OSHA stated that it is not banning cloth face coverings, nor do they "need to completely block out light" (as stated in the ETS itself), but rather they just need to be tightly woven fabric or non-woven material.
As a reminder of some other key provisions carried over from prior versions of the ETS, you also want to make sure your company is:
- Documenting employee vaccination status, by checking proof of vaccination, for if/when it may be able to allow fully vaccinated individuals to remove masks indoors.
- Providing adequate face coverings (including respirators or N95s, where required) for employees who are either unvaccinated or upon request.
- Contact tracing cases at work, and making sure employees and others in the workplace are appropriately quarantined and/or maintaining physical distancing requirements if they have been exposed to COVID-19.
- Providing free COVID-19 testing during paid working time to all symptomatic employees who are not fully vaccinated, regardless of work-related exposure.
- Maintaining COVID-19 safety plans and training for employees.
In addition to complying with the ETS, California employers must follow all public health orders on COVID-19 (including local public health department orders). The most recent order from the California Department of Public Health can be found here, which importantly includes an indoor mask mandate for all employees through February 15, 2022.
La De Da—The Beat Is Different for Healthcare Workers
Though SCOTUS blocked enforcement of the Federal OSHA ETS, separately in a 5-to-4 decision, the mandate for the Centers for Medicare & Medicaid Services was allowed to take effect. As Seyfarth recently reported, this mandate requires vaccines for health care workers at hospitals and other medical facilities that participate in certain Federal programs. California is one of the many states expected to continue under the timeframes and parameters identified in the December 28, 2021, CMS Guidance for the Interim Final Rule, which requires healthcare workers to be fully vaccinated by February 28, 2022.
And, as a reminder, California's Department of Public Health issued its own vaccine requirements for health care workers back in August 2021, and updated it on December 22, 2021, to address boosters, as described in detail here.
The CDPH vaccine requirement applies to workers who provide services or work in various types of healthcare facilities such as general acute care hospitals, skilled nursing facilities, and clinics and doctor's offices. The CMS mandate, on the other hand, does not require boosters, and applies to health care workers at facilities participating in the Medicare or Medicaid programs.
In many cases, facilities in California will be covered by both the CDPH vaccine requirements and the CMS mandate, with some exceptions. For example, and perhaps most notably, many doctor's offices will not be covered by the CMS mandate unless they are part of a larger hospital system, though they will be covered by the CDPH mandate.
California employers need to ensure immediate compliance with Cal/OSHA's ETS or risk potential citations. This includes substantial monetary penalties, sometimes five or six figures. Cal/OSHA recently posted new fact sheets (here and here) and updated its FAQ's on the ETS for guidance as well.
Remain on the lookout for additional alerts as the landscape continues to change. Consult your Seyfarth attorney, including any member of Seyfarth's Workplace Safety Team or Health Care Team, to ensure that your business is complying with the ever-changing COVID-19 rules and regulations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.