Last Thursday (June 3) in a unanimous vote, the Occupational Safety and Health Standards Board readopted Cal/OSHA’s revised COVID-19 prevention emergency temporary standards (ETS). These regulations as proposed phase out physical distancing requirements, but still maintain or only slightly modify many existing pandemic-related workplace restrictions. The next day (Friday, June 4), the Board stated it may refine the ETS in the coming weeks to align its mandate with California’s anticipated widespread reopening on June 15.
While this may not be the final word from Cal/OSHA, the Office of Administrative Law is expected to confirm the ETS by June 13, and those standards are expected to come into effect no later than June 15. What follows is a summary of the regulations now under review:
- Fully vaccinated workers without COVID-19 symptoms do not need to wear face coverings in rooms where everyone else is fully vaccinated and not showing symptoms, or when alone in a room.
- Fully vaccinated and unvaccinated workers without symptoms do not need to wear face coverings outdoors except when working at “outdoor mega events” with over 10,000 attendees, which may include theme parks.
- Workers are not required to wear face coverings while eating or drinking in the workplace, provided physical distancing is maintained and outside air is maximized to the extent possible when indoors.
- Fully vaccinated workers without symptoms do not need to wear face coverings when they are outdoors.
- Workers who cannot wear face coverings due to medical condition are not required to do so.
- Workers who cannot perform specific tasks with a face covering are not required to wear one, but only for the duration of the task.
- Except as indicated above, all workers indoors—regardless of vaccination status—will continue to be required to wear face coverings. For example, workers must still don masks when walking in hallways, where there is no way of determining whether others are vaccinated.
- Beginning July 31, employers must provide respirators, such as N95s, for voluntary use to all workers who are not fully vaccinated and who are working indoors or at an outdoor mega event.
- Until July 31, physical distancing requirements of six feet will remain in place regardless of vaccination status unless workers are wearing employer-required respirators (such as N95s), where an employer can show six feet of separation is not feasible, or for momentary exposure while workers are in movement.
- Employers can eliminate physical distancing and partitions/barriers for employees working indoors and at outdoor mega events if they provide respirators, such as N95s, to unvaccinated employees for voluntary use.
- After July 31, physical distancing and barriers are no longer required (except during outbreaks), but employers must provide all unvaccinated employees who work indoors or at outdoor mega events with respirators, such as N95s, for voluntary use.
Prevention Program & Testing:
- Every employer is still required to maintain a written COVID-19 Prevention Program setting forth a streamlined system of open communication for employees to report possible symptoms, close contacts, and other COVID-19 hazards in the workplace. However, there are some key changes to this requirement:
- Employers must give notice that people in the workplace may have been exposed within one business day of the time the employer knew or should have known of the COVID-19 case.
- Employers must review the California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.
- COVID-19 prevention training must now include information on how the vaccine is effective at preventing COVID-19 and protecting against both transmission and serious illness or death. This is consistent with CDC guidance and the general policy prerogative of encouraging unvaccinated employees to get vaccinated.
- Cleaning and disinfection protocols should continue to be followed, including providing adequate handwashing facilities and sanitizers.
- Employers must also make COVID-19 testing available at no cost to unvaccinated workers during the worker’s paid time, provided that the close contact was not previously infected within the prior 30 days.
Exclusion from the Workplace:
- Generally, employers still must exclude any employee who has had close contact with an infected individual until the return to work criteria set forth below are met.
- So long as they are asymptomatic, two classes of persons no longer need to be excluded from the workplace after a close contact with someone infected with COVID-19: (1) fully vaccinated workers and (2) those who have previously had COVID-19 so long as they have satisfied the return to work criteria (below), have remained asymptomatic for 90 days after the initial onset of symptoms, or never developed symptoms and 90 days have passed since their first positive test. Bottom line: vaccinated employees in particular no longer need to worry about being excluded from the workplace after being in contact with someone who was exposed to COVID-19, and employers can leverage this new regulation to further encourage employees to get vaccinated.
- With the exception of the individuals described immediately above, employers must exclude COVID-19 cases from the workplace and those who have had a close contact until these individuals meet the following return to work criteria. Of note, excluded employees must maintain their wages, earnings, seniority and all other employee rights and benefits, as if they had not been removed.
- This does not, however, apply when the close contact is not work-related, or where the employee receives disability payments, was covered by worker’s compensation or received temporary disability.
Return to Work Criteria:
- Particular return to work policies depend on whether an employee that has had COVID-19 was symptomatic or asymptomatic. These restrictions do not apply to an employee who is fully vaccinated.
- Symptomatic employees must not return to work until (1) 24 hours pass since a fever of 100.4 degrees or higher is resolved without the use of fever reducing medication; (2) COVID-19 symptoms have improved; and (3) at least 10 days have passed since the first COVID-19 symptoms appeared.
- Asymptomatic employees must not return to work until at least 10 days pass since the date of the first COVID-19 test.
- After an individual who has had COVID-19 case meets either of the criteria above, a negative COVID-19 test is not required for that employee to return to work.
- Employees who have a close contact with a COVID-19 patient can return to work if they do not develop symptoms so long as 10 days have passed since the last known close contact.
- Workers who have had a close contact and developed any COVID-19 symptoms cannot return to work until the satisfying the above requirements for symptomatic employees, unless (1) the person tested negative for COVID-19 using a PCR test with the testing done after the onset of symptoms; (2) at least 10 days have passed since the last known close contact; or (3) the person has been symptom-free for at least 24 hours, without using fever-reducing medication.
Special Protections for Housing and Transportation:
- Special COVID-19 prevention measures that apply to employer-provided housing and transportation no longer apply if all occupants are fully vaccinated.
Clarification on Definitions of Key Terms:
- An employee is “fully vaccinated” if the employer has documentation showing that the employee 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. Vaccines must be FDA approved or have an emergency use authorization from the FDA. Thus, employers still must document vaccination records of their employees to ensure compliance.
- The revised ETS uses the term “close contact” instead of the former term “COVID-19 exposure.” This is more consistent with CDC guidance and terminology and is easier to understand. Close contact means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period, but this does not apply if the person wore a respirator during such contact.
- The term “exposed group” is used instead of “exposed workplace,” which makes it easier to understand, since the focus is on a potentially exposed group of employees as opposed to a work location. Also, under the current ETS, any COVID-19 case present in the workplace during a high-exposure period would qualify as an “exposed workplace.” The new proposed definition of “exposed group” now only includes cases involving employees infected with COVID-19.
- The ETS also clarifies that “face covering” specifically excludes a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric as all of these may actually be worse than wearing no face covering at all.
From a practical perspective, the net effect of the ETS is that employers should be ready to navigate how to obtain vaccination information from workers and how to avoid pitfalls associated with obtaining that data (e.g., how to store it, who can have access to it, and appropriate ways to use it).
Further, the regulations may encourage employers to take a tougher approach to vaccination requirements. Even so, management should be wary as legal issues related to employee accommodation requirements and potential discrimination still apply. Consequently, employers must be certain that any new workplace policies are not discriminatory towards unvaccinated workers and that managers are trained not to discriminate or retaliate against unvaccinated workers.
Of course, if you have any questions or concerns about the ETS or, more broadly, workplace reintegration as we emerge from the pandemic, please do not hesitate to contact Lara A.H. Shortz at [email protected].
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.