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!