On June 17, 2021, the California Division of Occupational Safety and Health (Cal/OSHA) Standards Board adopted revised COVID-19 prevention emergency temporary standards (ETS) after withdrawing the previously approved revisions on June 9 to align to the latest California Department of Public Health (CDPH) new face covering guidance. These revised standards are the third set of changes, for which Governor Newsom has waived the 10-day review process by the Office of Administrative Law through an executive order signed this afternoon, and will take effect upon their filing with the California Secretary of State.
Employers must comply with the November 30, 2020, ETS until the new standards take effect.
Summary of Key Revisions
Face Coverings. Employers shall provide face coverings to all employees who are not fully vaccinated when indoors or in vehicles and to employees upon request regardless of their vaccine status. As of June 15, 2021, CDPH continues to require face coverings for indoor settings in public transit, K-12 educational facilities, and health care and prisons. Employers cannot retaliate against employees for wearing face coverings.
The exceptions for not wearing a mask indoors are:
- When alone in a room or vehicle.
- When eating and drinking with at least six feet apart and where outside air has been maximized to the extent possible.
- When an accommodation is required.
- When job duties make a face covering infeasible or create a hazard.
Respirators, Testing, and Social Distancing. Employers shall provide respirators for voluntary use to all employees who are not vaccinated and who work indoors or in vehicles with more than one person upon request. This requirement differs from federal guidance because California is phasing out physical distancing upon the effective date of the proposed revised ETS.
Employers will continue to make COVID-19 testing available at no cost to employees during employees’ paid time as follows:
- Symptomatic unvaccinated employees, regardless of whether there is a known exposure (new requirement).
- Unvaccinated employees after an exposure.
- Vaccinated employees after an exposure if they develop symptoms.
- Unvaccinated employees in an outbreak.
- All employees in a major outbreak.
Vaccination and Documentation. The revised ETS does not specify a particular method of documenting employees’ vaccination status, but employers have to document that the employees received U.S. Food and Drug Administration-approved vaccines or, for people fully vaccinated outside the U.S., vaccines listed for emergency use by the World Health Organization. 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 the employer maintains a copy.
- Employees provide proof of vaccination and the employer maintains a record of the employees who presented proof, but not the vaccine records themselves.
- Employees self-attest to vaccination status and the employer maintains a record of who self-attests.
The revised ETS allows an employer to require all employees to wear face coverings instead of having a documentation process. Employees have the right to decline to state if they are vaccinated or not, in which case, an employer must treat the employees as unvaccinated and cannot take disciplinary/discriminatory action against the employees.
Training and Outbreaks. Employers will need to provide COVID-19 training, including training on COVID-19 vaccination and testing, leave policies, and use of respirators. Employers will be required to implement protective requirements if an outbreak occurs in a workplace, continuing to report COVID-19 cases and outbreaks to the local health department whenever required by law.
A COVID-19 exposure will now be known as an “exposed group” instead of “exposed workplace,” which is 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. A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.”
The revised ETS will require employers to update their written COVID-19 Prevention Program plans and ensure their protocols and training take into account these latest changes.
Beyond the Blueprint
On June 15, 2021, the latest CDPH health order took effect as the state continues to progress out of the COVID-19 health pandemic. The order states that:
- All individuals must continue to follow the requirements in the Guidance for the Use of Face Coverings.
- All individuals must follow the requirements for mega events in the Beyond the Blueprint for Industries and Business Sectors.
- All individuals must continue to follow the requirements in the COVID-19 Public Health Guidance for K-12 Schools in California, the COVID-19 Public Health Guidance for Child Care Programs and Providers, and guidance made explicitly applicable to day camps and other supervised youth activities.
Other public health guidance related to COVID-19 that is not referenced above will no longer be considered mandatory but will represent best practices for preventing the spread of COVID-19.
Materials
Proposed Revisions to COVID-19 Prevention Emergency Temporary Standards FAQ
Revised Emergency Temporary Standards (June 11, 2021)