CAL/OSHA COVID-19 EMERGENCY TEMPORARY STANDARDS UPDATE HANGS TOUGH

---

June 4, 2021

The eagerly anticipated update to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) has just been adopted by the Occupational Safety and Health Standards Board (Board) and is on its way to the Office of Administrative Law for adoption by June 15.  The revised standards are the first update to the ETS adopted in November 2020.

And employers may be somewhat taken aback at the more restrictive results. 

Back in May, the Board had postponed a vote in anticipation of more relaxed guidance from the Centers for Disease Control and Prevention (CDC) regarding vaccinated persons and Governor Newsom’s planned June 15 re-opening of the state which were to purportedly influence the Board’s updated changes to the ETS.  Now that the Board has spoken, here are some of the revisions that some argue fall short of business and industry requests to fully ease up on restrictions owing to increased vaccination numbers and falling rates of COVID-19 cases. Although June 15 is the state’s reopening date, work sites for the most part must continue business “as usual” until at least July 31.

Physical distancing

Until July 31, the six feet physical distancing requirements between employees remain in place.

However, the following are exempt from the physical distancing requirements:

• Employees wearing respirators required by the employer and used in compliance with the section 5144 Respiratory Protection Standard;
• Locations at which all employees are fully vaccinated, except for employees who require a reasonable accommodation or have an exception to    vaccination under federal or state law.

Note: For this exception to apply, the employer must provide respirators for voluntary use in compliance with section 5144(c)(2) to all employees who are not fully vaccinated and test those employees for COVID-19 at least once per week, during paid time and at no cost to the employees.

After July 31, physical distancing and barriers are eliminated (except during outbreaks), but employers must provide all unvaccinated employees with N95s for voluntary use.

Face coverings

Employers must continue to provide face coverings and ensure they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, and where required by orders from the California Department of Public Health or local health department.

The following are the updated exceptions to the face coverings requirement:

•  When an employee is alone in a room, or when all persons in a room are fully vaccinated and do not have COVID-19 symptoms.
•  Employees wearing respiratory protection respirators required by the employer and used in compliance in accordance with section 5144 or other title 8 safety orders.
• Employees who are fully vaccinated, when they are outdoors and do not have any COVID-19 symptoms.

Employers should be aware of the additional obligations that the above ETS exceptions invite.  Employers must somehow document employees’ vaccination status, which would thereby create an additional burden regarding medical records and the protection of employees’ private and confidential information. Cal/OSHA has promised a new round of FAQs that addresses this issue.  Also, employees’ voluntary use of respirators entails compliance with section 5144(c)(2) and implementing written procedures for correct usage.

Partitions

Before July 31, 2021, partitions are still required at work stations where an employee is assigned to work for an extended period of time and where the physical distancing requirement is not maintained at all times.  The exceptions to this rule are if one of the exceptions to the physical distancing requirements exists.

After July 31, employers may remove partitions but must put them back in the event of multiple COVID-19 infections or outbreaks.

Worker exclusion and testing

Fully vaccinated workers who test positive for COVID-19 must continue to be excluded from work for 10 days after the positive test, even if they do not exhibit symptoms. However, fully vaccinated workers who do not have COVID-19 symptoms after a close contact no longer need to be excluded from the workplace.

Employers must continue to offer free COVID-19 testing to unvaccinated workers with symptoms during paid working time, even if the exposure was not work related. However, testing need not be offered for workers who are fully vaccinated before the close contact or certain individuals who have recovered from COVID-19.

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.

Prevention Program

Employers are still required to maintain a written COVID-19 Prevention Program but there are some key changes to requirements:

• 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.

Although the restrictions have not eased up as much as many had hoped, the Department of Industrial Relations noted in a press release: 

“The Board may further refine the regulations in the coming weeks to take into account changes in circumstances, especially as related to the availability of vaccines and low case rates across the state….”

If you need assistance with the new ETS, contact the experts at McKague Rosasco LLP.