The third time is the charm for Cal/OSHA which, after previously issuing and then rescinding revised emergency temporary standards regarding COVID-19, finally approved updated COVID-19 Emergency Temporary Standards (Revised ETS) which better align with current advisories from the Centers for Disease Control and California Department of Public Health. Those guidelines are expected to go into effect tomorrow as Governor Newsom has signed an executive order avoiding the usual 10-day review process by the Office of Administrative Law and directed that Office to file the Revised ETS with the Secretary of State as soon as possible.
Here are the main changes for workplaces under the new rules:
Employers may allow vaccinated employees to work without face coverings indoors, but they must document an employee’s vaccination status prior to allowing them to go without masks. That documentation process allows workers to either show written proof of vaccination, such as a CDC vaccine card, or to “self-attest'' that they are vaccinated without providing documentation.
Workers can decline to state if they are vaccinated or not. However, they will be treated as if they are unvaccinated.
Unvaccinated workers must wear masks indoors, unless alone in a room or vehicle. Employers must make approved respirators, such as N95 masks, available for unvaccinated workers if they request them. Please remember that if you provide respirators to employees, you must make sure that they are properly fitted and that the employee is properly trained on using them. Government officials have indicated that the State was going to make a month's supply of masks available to employees, which some business owners told the board during Thursday's public comment portion of the meeting was not enough.
No face coverings are required outdoors unless there is an outbreak.
If there is a COVID-19 outbreak, masks will be mandated for all workers indoors, and outdoors if six-foot physical distancing can’t be maintained.
No physical distancing or barriers between workers are required, regardless of employees’ vaccination status, although employers can re-evaluate the need if an outbreak occurs. Distancing and barriers will be mandated if a “major outbreak” of 20 or more cases occurs.
Fully vaccinated workers with no COVID-19 symptoms do not need to be tested or quarantined after they are exposed to the virus, unless there is an outbreak situation. For minor outbreaks, the Revised ETS now exempts from testing: (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.”
Vaccinated employees will no longer be required to miss work to quarantine if they come into contact with someone who contracted COVID-19.
Employees cannot face retaliation for wearing a mask, even if they are not required to do so.
Employers should expand their employee training under their COVID-19 Prevention Program to include information regarding COVID-19 vaccination, testing access/policies, leave policies, and the employer’s respirator policies.
In the Revised ETS “Exposed Group” replaces “Exposed Workplace” for COVID-19 Exposures. A COVID-19 exposure is now determined by if the employee was part of an “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.” The Revised ETS also specifies that “[a]n exposed group may include the employees of more than one employer.” Previously, COVID-19 exposures were determined by physical bounds to include the “Exposed Workplace.” As a result, the question of exposure is now based on whether you were exposed to the person with COVID-19, not where the exposed employee was located or went.
The Revised ETS also lifts prohibitions on sharing personal items or work equipment. Instead, regulators say employers should implement more cleaning protocols and evaluate their ventilation systems.
Please make sure to update your COVID-19 Prevention Programs. Also, remember that you may still need to work through an accommodation process with employees regarding masks and respirators or other issues posed by the above changes. If you need assistance or have any questions about the above or if there are any other labor or employment matters we can help with, please don’t hesitate to contact the experts at Young, Cohen & Durrett, LLP.