The Standards Board Approved the Updated Cal/OSHA Covid-19 Requirements and Governor Newsom Issued an Executive Order Making Them Effective

Note: This post was updated on June 18, 2021.

On June 17, 2021, the Cal/OSHA Standards Board voted 5-1 to approve the revised Covid-19 Emergency Temporary Standards (“ETS”) and, as promised, Governor Newsom promptly issued Executive Order No. N-09-21 holding that the new ETS shall not be subject to the regular 10-day approval process by the Office of Administrative Law (OAL) for emergency regulations.  Instead, the new ETS became effective when the OAL filed them with the California Secretary of State on June 18, 2021. As a result, face coverings/masking and other social distancing requirements shall be consistent between Cal/OSHA rules and public health guidelines from the CDC and California Department of Public Health.

A full copy of the approved ETS can be found here.

A full copy of Governor Newsom’s Executive Order No. N-09-21 can be found here.

As we have discussed in our prior blogs on this topic, employers are encouraged to read the ETS as they continue to impose certain mandates on employers to prevent, and respond to, Covid-19 in the workplace.

Cal/OSHA Has Come Full Circle to Align with CDC & CA Public Health Department

Continuing the yo-yo of back and forth revisions to the COVID-19 Emergency Temporary Standards (“ETS”), on June 11, 2021 Cal/OSHA submitted yet another draft of its proposed ETS to the Cal/OSHA Standards Board for review and approval.  While the draft contains a number of small changes to the earlier draft, the main revision deals with when masks – or face coverings – are required to be worn in the workplace.

If you have been following the news over the last few weeks, Cal/OSHA and the Standards Board have flipped-flopped back and forth regarding imposing a stricter mask requirement than the CDC and California’s Department of Public Health (CDPA).  But, finally, Cal/OSHA has come around and revised the ETS to align with public health guidance which says that fully vaccinated individuals do not need to wear masks.

Face Coverings (Masks):

Section 3205(c)(6) of the ETS now reads as follows:

“(6) Face coverings.

(A) For all employees who are not fully vaccinated, employers shall provide face coverings and ensure they are worn indoors or in vehicles.

(B) Employers shall provide face coverings and ensure they are worn by employees when required by orders from the CDPA 

(C) Employers shall ensure that required face coverings are clean and undamaged, and that they are worn over the nose and mouth. Face shields are not a replacement for face coverings, although they may be worn together for additional protection.

(D) When employees are required to wear face coverings under this section or sections 3205.1 through 3205.4, the following exceptions apply:

    1. When an employee is alone in a room or vehicle.
    1. While eating or drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent feasible.
    1. Employees wearing respirators required by the employer and used in compliance with section 5144.
    1. Employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person.
    1. Specific tasks which cannot feasibly be performed with a face-covering. This exception is limited to the time period in which the tasks are actually being performed.

(E) Employees exempted from wearing face coverings due to a medical condition, mental health condition, or disability shall wear an effective non-restrictive alternative, such as a face shield with a drape at the bottom, if their condition or disability permits it.

(F) Any employee not wearing a face covering, pursuant to the exceptions in subsections (c)(6)(D)4 or 5, and not wearing a non-restrictive alternative when allowed by subsection (c)(6)(E), shall be at least six feet apart from all other persons unless the unmasked employee is either fully vaccinated or tested at least weekly for COVID-19 during paid time and at no costs to the employee. Employers may not use the provisions of subsection (c)(6)(F) as an alternative to face coverings when face coverings are otherwise required by this section.

(G) No employer shall prevent any employee from wearing a face covering when not required by this section, unless it would create a safety hazard, such as interfering with the safe operation of equipment.

(H) When face coverings are not required by this section or by sections 3205.1 through 3205.4, employers shall provide face coverings to employees upon request, regardless of vaccination status.

(I) Employers shall implement measures to communicate to non-employees the face coverings requirements on their premises.”

The amended ETS also change the definition of “Fully vaccinated” slightly to mean that “the employer has documented that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine.  Vaccines must be FDA approved; have an emergency use authorization from the FDA; or, for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO).” (§3205(b)(9)).

Thus, to comply with the ETS, employers will need to have some sort of documentation (e.g. an attestation by the employee or copy of a COVID-19 vaccination card) establishing the employee’s vaccination status.  As stated in our June 4, 2021 blog regarding the first set of revisions to the ETS (which were adopted by the Standards Board on June 3rd and then revoked by the Standards Board on June 9th), the EEOC’s updated COVID-19 FAQs provide that it is not an improper “disability-related inquiry” for an employer to inquire about or request documentation or other confirmation that an employee obtained the COVID-19 vaccine from a third-party in the community, such as a pharmacy, personal health care provider, or public. However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential.

Some Other Revisions:

In its prior draft of the revised ETS, Cal/OSHA included a provision that required social distancing to continue in most workplace settings until July 31, 2021.  However, the most recent draft deletes this language and only requires social distancing under Section 3205(c)(6)(F) where an unvaccinated employee is unable to wear a face covering due to mental health, disability, or is hearing-impaired or communicating with someone who is hearing-impaired, or is performing a specific task that makes wearing a face covering unfeasible.  The ETS says in these cases, the person must be at least six feet apart from all other persons unless the unmasked employee is either fully vaccinated or tested at least weekly for COVID-19 during paid time and at no cost to the employee.

The latest version of the ETS also slightly revise the new obligation contained in the prior draft that employers must provide “respirators” (e.g. N95 masks) to unvaccinated employees to wear if they choose to do so.  In Section 3205(c)(7)(D) (“Personal protective equipment”) employers are required to provide respirators for voluntary use “upon request” by an unvaccinated employee who works indoors or in a vehicle with more than one person.  Therefore, employers may not be required to have a supply of N95 masks on hand, but merely purchase one if an unvaccinated employee requests one.

The revised ETS makes a few other minor revisions and a PDF of the full copy can be found here. The revised ETS continue to address various workplace health and safety issues related to COVID-19 and impose certain affirmative duties on employers to help prevent, and respond to, COVID-19 in the workplace. Therefore, all employers are encouraged to read the ETS and be sure they comply.

The current ETS (with all of its social distancing, masking, and other restrictions) remain in place. The Standards Board will review and vote on the revised ETS at its June 17, 2021 meeting.  If they vote in favor of adopting the revised ETS, then they will go to the Office of Administrative Law for approval before going into effect.  Given this process, the earliest the revised ETS will be in place is June 28, 2021.  However, Governor Newsom intimated in a June 11, 2021 interview that he may take some action to speed this process up – so stay tuned!

 

As California races towards reopening, employers are receiving (often conflicting) guidance on reopening procedures, especially with respect to when a mask is required for vaccinated individuals. In welcome news, it appears the various state agencies are moving towards more uniform policies, which will greatly relieve employers throughout the State.

California Department of Health Guidelines

First, on June 9th, California’s Health and Human Services Agency announced that California would be following the federal CDC guidance with respect to masking. Beginning on June 15th, individuals who are vaccinated are not required to wear a mask in public settings, except where masking of all individuals is required. Those situations include the following circumstances:

  • While on public transit.
  • Indoors in K-12 schools, childcare, and other youth settings.
  • In healthcare settings.
  • In state and local correctional facilities and detention centers.
  • In homeless shelters, emergency shelters, and cooling centers.

The Health and Human Services Agency also provided the following guidance specifically to businesses who welcome the public to their premises. The Agency recommends that such businesses choose one of the following options with respect to masking:

  • Provide information to all patrons, guests, and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry.
  • Implement vaccine verification to determine whether individuals are required to wear a mask.
  • Require all patrons to wear masks.

The Agency made clear that no person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business.

The Public Health Guidance can be found here.

Cal/OSHA Guidelines

On June 4, 2021, we told you that the Cal/OSHA Standards Board approved revisions to the COVID-19 Emergency Temporary Standards that contained controversial masking mandates. Yesterday, the Cal/OSHA Board met again in an emergency session and unanimously voted to rescind those revisions. The Board is expected to review (and possibly vote to adopt) new masking regulations that more fully align with California’s guidelines at their next scheduled meeting, which is on June 17. In the meantime, the emergency regulations adopted in November 2020 will remain in effect. Those regulations can be reviewed here.

At its June 9, 2021, special meeting, the Cal/OSHA Standards Board voted to withdraw the revisions to the Emergency Temporary Standards (ETS) that had been approved at its June 3rd meeting. You can find more information here.

Despite California’s Plan to Reopen on June 15, 2021, The Revised COVID-19 Emergency Temporary Standards Still Impose Restrictions in the Workplace

After an all-day meeting on June 3, 2021, the Cal/OSHA Standards Board approved revisions to the COVID-19 Emergency Temporary Standards (“ETS” or “regulations”). The Board first indicated a vote to reject the revised regulations, but then did a complete 180 and voted unanimously to approve them as a stop-gap measure while its newly-formed Board subcommittee worked to consider further revisions that are more in line with California’s Department of Public Health and  CDC guidelines.

Below are just some of the highlights from the revised ETS:

  • The revised ETS contain some new terms that are relevant when analyzing an employee’s exposure to COVID-19.

o   The term “Close contact” replaces the previous term “COVID-19 exposure.” “Close contact” is defined as “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the ‘high-risk exposure period’ defined by this section. This definition applies regardless of the use of face coverings.” (§3205(b)(1).)

o   The term “Exposed group” replaces the previous term “Exposed workplace.” “Exposed group” 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.” (§3205(b)(7).)

o   There are certain exceptions where individuals will not be considered to be in the “exposed group” – e.g. where a person momentarily passes through a place where everyone is wearing face coverings, where a person was not present at the same time (e.g. on a different shift) from the COVID-19 case, or where the COVID-19 case visited a work location or area for less than 15 minutes during the high-risk exposure period and everyone was wearing a face covering.

  • The “High-risk exposure period” is defined to mean the following time periods:

o   For COVID-19 cases who develop symptoms, from two days before they first develop symptoms until all the following are true: 10 days have passed since symptoms first appeared; 24 hours have passed with no fever, without use of fever-reducing medications; and symptoms have improved.

o   For COVID-19 cases who never develop symptoms, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected. Continue Reading Cal/OSHA Update: Don’t Take That Mask Off Just Yet!

On March 19, 2021, Governor Newsom signed legislation ensuring new supplemental paid sick leave (SPSL) for eligible workers impacted by the COVID-19 pandemic. The bill, SB 95, provides up to 80 hours of paid leave for employees who are forced to miss work for qualifying reasons. The SPSL covers many more employers than previous legislation, and allows workers to use the leave for more reasons. The law is codified in new California Labor Code sections 248.2 and 248.3, the text of which can be found here. The Labor Commissioner has also issued FAQs, found here, to help employers navigate their new obligations. Below are some of the key aspects of the new law and some of the items addressed in the FAQs.

Coverage

All employers, whether public or private with at least 25 employees are required to offer the SPSL. This represents a significant expansion of California’s previous pandemic-related sick leave law, which only applied to employers with more than 500 employees.

The new paid sick leave is available to all employees who cannot work or telework for qualifying reasons. Employees who may not be able to report in person to work, but who may still perform their job duties remotely, will not be eligible for SPSL. Covered employees are entitled to the new SPSL in addition to any paid sick leave that was provided under previous laws that expired on December 31, 2020. This means any employee who used paid sick leave under the federal Families First Coronavirus Response Act (FFCRA) in 2020 will be eligible for up to 80 hours of new SPSL under the California law.

To read the full article, please click here to download a PDF.