On June 11, 2021, California's Occupational Safety and Health Standards Board (Standards Board) released its latest set of proposed revisions to the Division of Occupational Safety and Health's (Cal/OSHA) COVID-19 Emergency Temporary Standards (Revised ETS). The Standards Board will vote on the Revised ETS at its June 17 Standards Board meeting, after which the proposed regulation will be submitted to the Office of Administrative Law (OAL) for approval. Once approved, the Revised ETS will take effect no later than June 28. Until then, the current ETS remains in effect.
This latest iteration of the Revised ETS—the third proposed version released since late May—signifies the latest development in a series of fits and starts by the Standards Board to pass updated COVID-19 standards to align with the latest guidance from the California Department of Public Health (CDPH) and Centers for Disease Control (CDC) on physical distancing and the use of face coverings for vaccinated individuals.
- Fully Vaccinated Employees Not Required to Wear Face Coverings Indoors: Consistent with the latest guidance from CDC and CDPH, the Revised ETS will exempt "fully vaccinated" employees from wearing face coverings indoors. Employees who are not fully vaccinated will still be required to wear face coverings while indoors or in vehicles, subject to certain limited exceptions (e.g., being alone in a room, eating or drinking while maintaining physical distancing, while wearing a respirator, etc.)
- Physical Distancing Requirement Removed: Most notably, the Revised ETS omits physical distancing requirements, which appears to signal Cal/OSHA's intent to have all employees either fully vaccinated or using respirators on a voluntary basis. Realistically, however, not all employees at any given worksite will be fully vaccinated, and even those provided respirators can still refuse them. Given the practical challenges in ensuring 100% vaccination and/or respirator use, employers unable to achieve these milestones should consider continuing to enforce physical distancing and the use of face masks for unvaccinated employees as a means of limiting COVID-19 exposures in the workplace.
- "Exposed Group" Replaces "Exposed Workplace" for COVID-19 Exposures: A COVID-19 exposure will now be drawn along the lines of the "Exposed Group," 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." (Emphasis added.) (Under the current ETS, COVID-19 exposures are drawn along physical bounds to include the "Exposed Workplace," a definition that was particularly challenging for employers with large workforces working in a single location, such as a warehouse or distribution center.) Of significance, the Revised ETS' delineation of a COVID-19 exposure to the "Exposed Group" will dictate (and arguably limit) the scope and extent of an employer's myriad obligations, including: investigating, contract tracing, notifying, reporting and maintaining records, counting toward outbreaks, and administration of COVID-19 testing (where necessary). Importantly, the Revised ETS' reference to "employees" should not be interpreted as referring only to a worker's payroll status (e.g., as a regular employee or contingent worker); the Revised ETS specifies that "[a]n exposed group may include the employees of more than one employer."
- Employers Will Need to Stockpile Respirators: Signaling Cal/OSHA's intent to encourage the widespread use of respirators for unvaccinated employees, the Revised ETS requires that "[u]pon request, employers shall provide respirators for voluntary use in compliance with [Cal/OSHA's Respiratory Protection Standard] to all employees who are not fully vaccinated and who are working indoors or in vehicles with more than one person." Of note, employers are only required to provide respirators upon request by the employee, not mandate their actual use. In so doing, however, employers must have their employees complete a Voluntary Appendix D Acknowledgment for voluntary respirator use.
- Vaccination Documentation: The Revised ETS' definition of "Fully Vaccinated" requires that the employer have documentation of vaccinations in order to avail itself of provisions specially tailored to vaccinated employees. The Revised ETS does not specify how or on what media an employer must maintain such documentation, which suggests that more than one form of documentation would be acceptable to Cal/OSHA in proving an employee's vaccination status. Employers must address potential privacy and recordkeeping implications in maintaining such records in light of workplace safety and health, employee confidentiality, and equal employment opportunity (EEO) requirements.
- Limitations on Testing for Minor and Major Outbreaks: From inception, the ETS' broad and onerous testing requirements have engendered much consternation for employers dealing with major and minor outbreaks within their workforces. Carrying out those provisions proved to be particularly challenging for employers with large workforces assigned to a single worksite, such as warehouses, distribution centers and certain retail locations. The Revised ETS clarifies an employer's COVID-19 testing obligations by limiting the testing group to those within the "Exposed Group"—a more precise reformulation for evaluating COVID-19 exposures, as discussed above. For minor outbreaks, the Revised ETS now explicitly exempts from the testing group: (1) "[e]mployees who were fully vaccinated before [the testing provisions of the Revised ETS] became applicable to the workplace and who do not have COVID-19 symptoms"; (2) "COVID-19 cases who did not develop COVID-19 symptoms after returning to work . . . for 90 days after the initial onset of COVID-19 symptoms" and (3) "COVID-19 cases who never developed symptoms, [for] 90 days after the first positive test." For major outbreaks, employer will need to test "all employees in the exposed group, regardless of vaccinated status."
Since the adoption of the current ETS, Cal/OSHA has prioritized enforcement of COVID-19 inspections and investigations, issuing hundreds of COVID-19 citations to employers throughout California, some of which carry significant six-figure penalties. Even with steadily decreasing infection rates and hospitalizations due to COVID-19, Cal/OSHA will continue to maintain its vigorous enforcement strategy through the Revised ETS. With these considerations in mind, employers with operations in California are strongly advised to revisit their COVID-19 protocols for compliance and update their written COVID-19 Prevention Plans and trainings to account for the new provisions in the Revised ETS. During this period of review, employers should pay special mind to the Revised ETS' new provisions dealing with fully vaccinated individuals and respirators. As with any compliance review, employers must devise a COVID-19 Protection Plan that strikes the delicate balance between satisfying the Revised ETS' minimal requirements without over-promising on protections that will not be delivered: Too little or too much can result in litigation and potential legal exposure. Employers are strongly encouraged to consult with counsel specializing in occupational safety and health.
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