COVID-19, Enforcement and Inspection, Regulatory Developments

Taking a Closer Look: Understanding Cal/OSHA’s Latest COVID-19 Prevention ETS Revision

As reported in last week’s update, the California Occupational Safety and Health Standards Board recently adopted the Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 emergency temporary standard (ETS) regulation. On the same day as Cal/OSHA’s update, California Governor Gavin Newsom also signed Executive Order (EO) N-09-21, bypassing the standard 10-day approval period and allowing the revised ETS to take effect immediately.

California cal/osha ETS
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The agency issued the revised ETS in light of (1) the availability of vaccinations to limit workplace transmission and (2) updated face covering guidance from the U.S. Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH). The updated standard is designed to help employers make a safe transition from physical distancing and face covering mandates to more normal operations.

Here’s a closer look at the key changes to the original ETS, which was effective on November 30, 2020, and what this means for Cal/OSHA workplaces going forward.

Face Coverings Indoors

In accordance with the latest guidance from the CDC and the CDPH, the revised ETS says “fully vaccinated” employees don’t have to wear face coverings indoors unless required by a CDPH order. Currently, the agency mandates face coverings in certain indoor settings, including public transit, K-12 educational facilities, healthcare and long-term care settings, correctional and detention facilities, and homeless or emergency shelters and cooling centers.

Employees who aren’t fully vaccinated are still generally required to wear face coverings while indoors or in vehicles, subject to certain limited exceptions:

  • They are sitting alone in a room or vehicle, eating or drinking, or wearing respirators;
  • They require an accommodation because of a medical condition or disability; or
  • Job duties make a face covering infeasible or create a hazard.

Although face coverings aren’t required outdoors, you must notify employees that masks are recommended for unvaccinated persons outdoors when six feet of physical distancing cannot be maintained.

You must continue to provide face coverings to unvaccinated employees. In addition, you must make them available to vaccinated employees upon request. You can’t retaliate against employees for wearing masks, including when they’re using them voluntarily.

Vaccination Documentation Required

An employee is considered “fully vaccinated” if you as the employer have documented the person received (at least 14 days earlier) either the second dose in a two-dose COVID-19 vaccine series or a single-dose vaccine. Vaccines must be approved by and have an emergency use authorization (EUA) from the Federal Drug Administration (FDA). Or for persons fully vaccinated outside the United States, the vaccines must be listed for emergency use by the World Health Organization (WHO).

For any employee not wearing a face covering indoors, you must record the individual’s vaccination status and keep it confidential. According to Cal-OSHA’s FAQs, acceptable options for documentation include:

  • Employees provide proof of vaccination (a vaccine card, its image, or a healthcare document showing vaccination status), and you keep a copy.
  • Employees provide proof of vaccination, and you keep a record of which ones presented evidence, but not the vaccine record itself.
  • Employees self-attest to vaccination status, and you maintain a record of who self-attests.

If employees decline to say whether they are vaccinated, you must treat them as unvaccinated.

Physical Distancing Requirement Removed

The revised ETS generally eliminates physical distancing and barrier requirements, regardless of vaccination status. Employers are under an ongoing requirement, however, to assess workplace hazards and implement controls to prevent disease transmission. Therefore, you may encounter circumstances when you determine physical distancing is still necessary. For example, if your workplace has unvaccinated employees who decline to wear respirators, you should consider continuing to enforce physical distancing (along with the use of face coverings for those individuals) as a means of limiting COVID-19 exposures.

Further, during an outbreak (i.e., three or more COVID-19 employee cases in an exposed group), employers are required to evaluate whether physical distancing or barriers are necessary to control the transmission. Physical distancing and barriers also must be used during a major outbreak (i.e., 20 or more COVID-19 employee cases in an exposed group) for all employees, regardless of vaccination status.

Employers Must Provide Respirators

According to the FAQs, Cal/OSHA is requiring respirators because California is phasing out physical distancing, and a well-fitting respirator reduces the risk of infection better than physical distancing alone. Also, respirators are readily available. Employers must provide them to:

  • Any unvaccinated employee who works with others indoors or in a vehicle and  requests a respirator; and
  • When a major outbreak occurs, any employees in the exposed group for voluntary use.

The revised ETS defines a “respirator” as “a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.” The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal” or fit.

You may initially either (1) stock respirators and offer them to employees or (2) poll workers to determine which employees wish to be provided with respirators before obtaining them. Once you’ve established that some employees want to wear respirators, you must have enough of the correct size and type on hand to fulfill reasonably foreseeable requests upon demand. You may permit an employee to select and purchase his own respirator, provided you reimburse him in a timely manner.

In addition, in the event of a major outbreak, you must immediately offer respirators to employees, regardless of vaccination status and without waiting for a request from them.

Testing Requirements

Employers must offer COVID-19 testing at no cost during paid time to:

  • Symptomatic unvaccinated employees, regardless of whether there is a known exposure;
  • Unvaccinated employees after an exposure;
  • Vaccinated employees after an exposure if they develop symptoms;
  • Unvaccinated employees during an outbreak; and
  • All employees in a major outbreak.

For minor outbreaks, the revised ETS now explicitly exempts from the testing group (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 [the] symptoms,” and (3) “COVID-19 cases who never developed symptoms, [for] 90 days after the first positive test.”

For major outbreaks, you’ll need to test “all employees in the exposed group, regardless of vaccinated status.”

Other Notable Changes In Revised ETS

Another significant change in the revised ETS is that fully vaccinated employees without symptoms don’t need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.

For indoor locations, employers are required to evaluate (1) how to maximize ventilation with outdoor air, (2) the highest level of filtration efficiency compatible with the existing ventilation system, and (3) whether the use of portable or mounted high-efficiency particulate air (HEPA) filtration units or other air-cleaning systems would reduce the risk of COVID-19 transmission.

Certain Requirements in Original ETS Remain in Place

Several requirements in the original ETS still remain in place including:

  • Providing effective training and instruction to employees on your company’s prevention plan and their rights under the ETS;
  • Notifying public health departments about outbreaks;
  • Letting employees know about exposure and close contacts;
  • Offering testing after potential exposures;
  • Responding to COVID-19 cases and outbreaks;
  • Following the rules for quarantine and exclusion pay; and
  • Observing basic prevention rules for employer-provided housing and transportation.

Bottom Line

You should implement the revised ETS as soon as possible. If you’re unable to do so, you must implement or retain alternative controls to protect employee health. According to Cal/OSHA’s FAQs:

If an employer is continuing to comply with the November [2020] ETS while implementing the revisions, Cal/OSHA will not cite the employer.

With respect to face coverings, you can comply with the revised ETS by requiring masks for all employees while you gather the documentation to allow fully vaccinated persons to go without them.

If you’re unable to provide NIOSH-approved respirators as of June 17, when the revised ETS became effective, you must take alternative measures to protect unvaccinated employees until they’re available, such as continuing to enforce physical distancing, barriers, and face coverings for unvaccinated employees.

Cathleen S. Yonahara is an editor of the California Employment Law Letter and can be reached at Freeland Cooper & Foreman LLP in San Francisco, yonahara@freelandlaw.com.