The Cal/OSHA Standards Board voted on June 17 to “readopt” the COVID-19 Prevention Emergency Temporary Standards (ETS) with several revisions that brought the ETS rules for fully vaccinated employees more in line with the Centers for Disease Control and Prevention (CDC) and California Department of Public Health’s (CDPH) guidance. Later that day, Governor Gavin Newsom issued Executive Order N-09-21 that eliminated 10 days of administrative review so that the ETS could take effect immediately.
As a result, California businesses subject to the CDPH guidance and employers subject to the ETS finally are governed by similar COVID-19 prevention rules. Employers in California should update their written COVID-19 Prevention Program as soon as possible to comply with the new version of the ETS. Below are notable changes as well as a partial list of provisions that have remained unchanged from the original ETS adopted November 30, 2020.
Ascertainment of Vaccination Status
The ETS defines “fully vaccinated” as: “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).”
Accordingly, employers must “document” vaccination status for any employee not wearing a face covering indoors, and this record must remain confidential. Cal/OSHA issued FAQs addressing this and other requirements. The FAQs clarify that “has documented” means that employers are not required to obtain proof of vaccination status. The following are examples of acceptable methods to ascertain vaccination status:
Accordingly, employers must decide how they will collect vaccination information if they wish to take advantage of the exceptions to safety protocols for fully vaccinated employees. However, employers can forego this process if they treat fully vaccinated employees and unvaccinated employees alike (e.g., masks required for all employees working indoors).
Fully vaccinated employees are no longer required to wear a face mask in most indoor and outdoor settings. Employees not fully vaccinated must wear a mask indoors except in the following cases:
Employees exempt from the face covering requirement due to a disability and who are not wearing a nonrestrictive alternative must with limited exception be at least six feet apart from all other persons.
The ETS also further limit the definition of a permissible “face covering” to a surgical mask, a medical procedure mask, a “respirator” (such as an N95) worn voluntarily, or a tightly-woven fabric or non-woven material of at least two layers.
The ETS also forbids employers from preventing an employee from wearing a face covering when it is not required. Also, employers must continue to provide face coverings to employees upon request, regardless of vaccination status.
Employers must provide respirators to employees not fully vaccinated for voluntary use upon the employees’ request. A “respirator” is defined as a National Institute for Occupational Safety and Health-approved respiratory protection device (N95, not KN95). Employers must encourage the use of respirators and ensure that employees who request respirators are provided with the correct sized respirators. The ETS also include new training requirements for employees on how to use respirators.
Generally, physical distancing is no longer required regardless of vaccination status, unless there is an outbreak.
Solid partitions (such as plexiglass) no longer are required unless there is an outbreak.
In addition, the ETS incorporated stricter standards for mechanical ventilation systems at indoor workplaces. The employer must evaluate (1) how to maximize ventilation with outdoor air, (2) the use of the highest level of filtration efficiency compatible with the existing system, and (3) the use of portable or mounted High Efficiency Particulate Air filtration units, or other air cleaning systems, if it would reduce the risk of COVID-19 transmission.
Deviating from CDC guidance and many other states’ updated directives, the ETS continue to require employee screening for COVID-19 symptoms for all employees at the worksite regardless of vaccination status. The employer may ask employees to evaluate their own symptoms before reporting to work (self-screening). If the employer chooses to conduct screening indoors at the workplace, the employer must ensure that both screeners and employees who are not fully vaccinated wear face coverings during screening. Temperature checks are not required. If screeners conduct temperature checks, then they must use non-contact thermometers.
Written COVID-19 Prevention Program
The readopted ETS retain the requirement to prepare a written COVID-19 Prevention Program, and list the exact topics the Program should include. Fortunately, Cal/OSHA has announced it will be updating its helpful template Prevention Program and posting the update online soon.
Cal/OSHA Covid-19 Case Notice and AB 685
Based on the original ETS, there were two separate employee notice requirements under California law following a COVID-19 case in the workplace: (1) notice to all employees, other employers, and authorized representatives in the workplace under AB 685 (aka Labor Code section 6409.6), and (2) notice to all close contacts (employees, independent contractors, other employers, and authorized representatives) under the ETS. However, the updated ETS eliminates the notice requirements to close contacts and adopts the AB 685 notice requirements.
Exclusion of COVID-19 Cases and Close Contacts
Employers must continue to exclude COVID-19 cases and certain close contacts from the workplace. A “close contact” means 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.”
There are two new exceptions to the close contact exclusion requirement:
Though the requirements for COVID-19 cases remain the same (COVID-19 cases must be excluded regardless of vaccination status), there are new provisions regarding the return-to-work requirements for close contacts. Unvaccinated employees who had a close contact but never developed any COVID-19 symptoms may return to work when 10 days have passed since the last known close contact.
However, employees who had a close contact and developed any COVID-19 symptoms cannot return to work until all the following are true:
The above criteria for symptomatic close contacts do not apply, however, if all the following are true:
Training and Instruction
The ETS include new training requirements and modify certain previously required topics. The new or revised requirements include the following:
‘Exposed group’ and Outbreak Case Counting
Previously, the outbreak and major outbreak requirements, and the case-counting method for determining whether such outbreaks exist, applied to an “exposed workplace.” Cal/OSHA changed the terminology to “exposed group,” 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.” Notably, employers no longer must include nonemployee COVID-19 cases when counting the number of cases for determining whether there is an outbreak.
Also, there are exceptions to the definition of the “exposed group”:
These exceptions reduce the chances that employers will reach the required number of COVID-19 cases for outbreak provisions to apply.
Revised “Outbreak” Requirements
The “outbreak” provisions still apply when there have been three or more employee COVID-19 cases within an exposed group during a 14-day period. If this occurs, the employer must provide weekly testing to all employees in the exposed group, except for the following:
Also, the employer must implement the following policies:
Revised ‘Major Outbreak’ Requirements
The “major outbreak” provisions still apply when there have been 20 or more employee COVID-19 cases within an exposed group during a 30-day period. If this occurs, then the employer must provide biweekly testing to all employees in the exposed group regardless of vaccination status.
In addition to the regular outbreak requirements, the employer must implement the following:
The good news for employers is that physical distancing no longer is required in employer-provided transportation. However, the prior ETS provisions on employer-provided transportation only applied to transportation to and from work. The bad news for employers is that the readopted ETS have expanded to include all employer-provided transportation. Employers not previously covered should become familiar with the ETS’ detailed requirements related to employer-provided transportation and should include applicable provisions in an updated COVID-19 Prevention Plan.
Cal/OSHA’s frequent course changes on the updated ETS have presented challenges for employers attempting to plan and develop policies for reopening workplaces. With the Standards Board’s June 17 “readoption” of the ETS that include provisions aligning with the CDC and CDPH on face covering and quarantine requirements, employers in California can implement protocols to return employees to a semi-normal workplace. Employers should revise their COVID-19 Prevention Plans. Employers also should be mindful of the many other provisions in the readopted ETS that did not change, and of the possibility that Cal/OSHA will further revise the standards in the future.
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
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Orange County/Silicon Valley
Daryl S. Landy