On June 17, the Cal-OSHA board approved a set of revisions to the Emergency Transmission Standard (ETS) for COVID-19 issued on June 11 (June 11 Revisions). Pursuant to Governor Newsom's Executive Order (see link), the new revisions take effect as soon as they are filed with the California Secretary of State and conform Cal-OSHA workplace standards to those previously issued by the California Department of Public Health (CDPH) and the Centers for Disease Control (CDC). The June 11 Revisions make two significant changes to the amended regulations approved on June 3 and then withdrawn on June 9. (See link for prior guidance on June 3 revisions). First, the June 11 Revisions eliminate social distancing requirements in non-outbreak situations. Second, fully vaccinated employees are not required to wear masks. Below we provide greater detail on the major changes between the June 11 Revisions and the prior withdrawn draft:
- Social distancing - No social distancing is required in the workplace in non-outbreak situations regardless of vaccination status.
- Masks - Fully vaccinated employees will no longer be required to wear masks at the workplace except in limited circumstances as defined by CDPH (see link). Employers must continue to provide face coverings to all employees who are not fully vaccinated. In addition, employers must ensure that not fully vaccinated employees wear face coverings indoors and in vehicles. Employers also must implement measures to communicate their face mask requirements to non-employees on their premises. Unfortunately, neither Cal-OSHA nor any other governmental body has provided guidance on what the employer's obligation is to check vaccination status and/or police masking of not fully vaccinated employees.
Face coverings are defined as a "surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers. A face covering has no visible holes or openings and must cover the nose and mouth."
Please note employers still must provide N95 masks upon request to employees who are not fully vaccinated and who are working indoors or in vehicles. Employers should consult this link for assistance in procuring N95 masks.
- Fully vaccinated - The definition of "fully vaccinated" has been expanded to include COVID-19 vaccines approved for emergency use by the World Health Organization. These include COVID-19 vaccines that are not currently approved by the Food and Drug Administration.
- Additional outbreak measures - Social distancing and masking are required after an outbreak for all employees in the exposed group. In addition, employers must give notice to employees in the exposed group of their right to request a respirator for voluntary use under subsection 3205(c)(7)(D)2, if they are not fully vaccinated.
We recommend continually monitoring Cal/OSHA's FAQ page. Moreover, although not expressly mandated by the June 11 Revisions, we recommend updating your company's COVID-19 prevention plan to ensure compliance and to provide notice to employees.
The June 11 Revisions are just one piece of a broader environment of regulations and guidance from multiple local, state and federal agencies. Employers should consult experienced counsel to develop plan to comply with the updated ETS, as well as address new CDC and CDPH guidance.
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.