Just as the COVID-19 pandemic seems to be winding down and the state of California is opening up, the California Occupational Safety and Health Standards Board voted on June 17, 2021 to readopt revisions to the COVID-19 Prevention Emergency Temporary Standards (ETS) on vaccination availability, removal of physical distancing requirements and guidance on face coverings to align with the Centers for Disease Control and Prevention (CDC) and California Department of Public Health (CDPH). These revisions take effect immediately by executive orders signed by Governor Gavin Newsom, which apply to most workers in California.
This ETS process moved fast and furious through Cal/OSHA’s rulemaking process. A petition was filed in May 2020 for an emergency temporary standard on COVID-19 to protect workers in California. In July 2020, it was placed on the Standards Board calendar for review after several public meetings and substantial public comments from employers. Concerns ranged from Cal/OSHA’s jurisdiction for imposed requirements to continue benefits to workers excluded from the workplace due to COVID-19 related reasons; requirements of providing COVID-19 testing at no cost to potentially exposed employees; and the requirements on employer-provided housing and transportation to separate beds by eight feet and require three feet of separation in employer-provided vehicles.
During the November 17, 2020 meeting, Cal/OSHA adopted the emergency temporary rules to strengthen COVID-19 protections for workers and it became effective November 30. These proposed regulations include a written COVID-19 Prevention Plan (CPP), procedures for outbreak requirements, procedures for major outbreak requirements, employer-provided housing and employer provided transportation.
As we headed into 2021, the Standards Board held several meetings to hear public comments on the proposed ETS language for re-adoption, with three public meetings held in June alone. On June 3, the Standards Board held a special meeting to vote on the revised COVID-19 ETS, and after a long nine-hour meeting, the Board initially voted to reject any changes to the current ETS. After the Board deliberated for over an hour, they realized that rejecting would mean the current regulation would have stayed in effect. Therefore, the Board voted to approve the current ETS regulation requiring masks to be worn at all times indoors as well as outdoor less than 6 feet away from others, employers to provide and encourage unvaccinated workers to wear respiratory protection (N95s).
This meant it was headed to the OAL for review and approval, to be effective June 15. But a few days later, CDPH published guidance on June 7 to align the face coverings with the guidance from CDC. Then, Cal/OSHA submitted additional revisions to the ETS, and employer groups continued to ask the Board to consider changes of the proposed requirements for employers to provide N95 respirators for voluntary use to unvaccinated employees and clarification of the recordkeeping requirement for vaccination status. The Board proposed updated ETS from division staff at the June 17 meeting, and the current ETS has removed some of the initial requirements. Below is a summary of the current requirements:
Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status. The revised ETS does not specify a particular method but the employer must record the vaccination status for any employee not wearing a face covering indoors, and this record must be kept confidential. Acceptable options include:
Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
Employees self-attest to vaccination status and employer maintains a record of who self-attests.
Nothing in the revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.
Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request. Employers may not retaliate against employees for wearing face coverings. Exceptions for unvaccinated persons: When alone in a room or vehicle; When eating and drinking; When an accommodation is required; and When job duties make a face covering infeasible or create a hazard.
Elimination of physical distancing or barrier requirements regardless of vaccination status with the following exceptions:
- Employers must continue to assess workplace hazards and implement controls to prevent transmission of the disease. There may be certain circumstances when physical distancing and barriers are necessary in the workplace.
- Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (three or more cases in an exposed group of employees.)
- Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees.)
Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations.
Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems.
There are requirements that remain in place from the November 2020 ETS, and those are: Written COVID-19 Prevention Plan; Effective training and instructions on the employer’s prevention plan and employee rights under the ETS; Notification of outbreaks to local public health departments; Notification to employees of exposure and close contacts; Procedures for responding to COVID-19 cases and outbreaks; Offer testing after potential exposures; Implement exclusion pay requirements; and Employer-provided housing and transportation prevention requirements.
In addition, the employer shall develop and implement a process for screening employees for and responding to employees with COVID-19 symptoms. The employer may ask employees to evaluate their own symptoms before reporting to work. If the employer conducts screening indoors at the workplace, the employer shall ensure that face coverings are used during screening by both screeners and employees who are not fully vaccinated and, if temperatures are measured, that non-contact thermometers are used.
Employers are to develop and implement an effective COVID-19 Prevention Program. Be sure your plan includes these updated revisions. Cal/OSHA will move forward with the formal rulemaking process for a permanent regulation.