After a whirlwind of highly charged regulatory activity, new Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (“ETS”) were finally passed on June 17, 2021. The new safety rules went into effect the very same day after Governor Newsom issued an Executive Order allowing the new rules to go into effect immediately. With limited exceptions, all California employers must comply with the ETS.
The revisions represent a significant relaxation of the COVID-19 restrictions imposed last November during the height of the pandemic. A major feature of the new rules is the lifting of many restrictions for fully vaccinated employees.
In addition to Cal/OSHA’s new safety rules, California employers also must abide by restrictions imposed by the State Health Department and the Health Department Orders issued by city and county Health Officers.
The highlights from the revised ETS are provided below.
No Face Coverings for Fully Vaccinated Employees. Fully vaccinated employees do not need to wear face coverings when working indoors or outdoors, except in certain situations such as following a COVID-19 outbreak and in higher-risk settings such as public transit, K-12 educational facilities, healthcare, and long-term care settings, correctional and detention facilities, and shelters.
Unvaccinated employees must continue wearing face coverings when working indoors and in vehicles; masks may be removed only when the unvaccinated employee is alone in a room or vehicle, is eating or drinking, or when an accommodation is required. Unvaccinated employees are no longer required to wear face coverings outdoors.
When face coverings are required, employers must provide a face-covering consisting of a tightly woven fabric or non-woven material of at least two layers and ensure they are worn over the mouth and nose of employees. Single-layer fabric masks are no longer an acceptable form of face covering.
Additionally, employers may not prevent an employee from wearing a face-covering if they wish to do so (unless the face-covering would create a safety hazard), even if the employee is not required to wear a face-covering under the ETS.
Exceptions to the Workplace Exclusion of Close Contacts. Close contacts who are fully vaccinated and/or contracted COVID-19 more than ninety (90) days before the contact do not need to be excluded from the workplace if they do not have symptoms.
Note: For employees who contracted COVID-19 more than ninety (90) days before the close contact, they can only remain at the workplace if they did not experience any COVID-19 symptoms for the entire ninety (90) day period preceding the close contact.
Employers Must Document Vaccination Status. In order to enact the relaxed guidelines for fully vaccinated employees (e.g., no face coverings, testing requirements, close contact exclusion requirements, etc.), employers must document and record the employee’s vaccination status. Acceptable documentation includes:
- Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy;
- Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself; or
- Employees self-attest to vaccination status and employer maintains a record of who self-attests.
Note: The relaxed rules for vaccinated employees only apply to fully vaccinated employees, meaning 14 days must have passed since the employee received his or her final vaccination shot.
Note: Any record of an employee’s vaccination status must be kept as a confidential medical record, separate from the employee’s personnel file.
No Physical Distancing. There are no physical distancing or barrier requirements regardless of employee vaccination status except during a COVID-19 outbreak.
COVID-19 Testing. Employers must offer COVID-19 testing to employees during paid time to:
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Symptomatic unvaccinated employees, regardless of whether there is a known exposure (this is a new requirement);
- Unvaccinated employees after a COVID-19 exposure;
- Fully vaccinated employees after a COVID-19 exposure if they develop symptoms;
- Unvaccinated employees in a COVID-19 outbreak; and
- All employees in a major outbreak.
Mandatory Provision of Respirators (N95s). Upon request, Employers must provide respirators (N95s) for voluntary use to all unvaccinated employees who work with others indoors or in a vehicle.
Vaccination Training. Employers must provide training on the benefits of vaccination and how to access vaccination.
Notice of COVID-19 Exposure. Employers are still required to provide written notice to employees potentially exposed to COVID-19 at the workplace. Under the revised standards this notice must be given within one (1) business day of the time the employer knew or should have known of a COVID-19 case at the workplace. This new “should have known” language imposes an affirmative obligation on employers to vigilantly monitor COVID-19 at their workplace.
Employee Screening. Employers must continue to screen all employees for COVID-19 symptoms before reporting to the workplace, regardless of vaccination status.
Sharing of Items. Employers are no longer required to prohibit the sharing of commonly touched objects such as phones, desks, keyboards, etc.
Narrowing of Exclusion Pay Exemptions. Under the current version of the ETS, employees are ineligible for exclusion pay if they are not “otherwise able and available to work.” This language was interpreted by the Department of Industrial Relations to mean that employees were ineligible for exclusion pay if they were suffering from COVID-19 symptoms, had a disability, or not available to work due to a business closure, caring for a family member, or a vacation. That language was removed in the revised ETS and the only exceptions are for employees receiving disability or workers’ compensation, or if the employer demonstrates that the COVID-19 exposure was not work-related. If none of those exceptions apply, employers must maintain the earnings of employees excluded from work due to COVID-19.
COVID-19 Outbreak Testing. Outbreak testing requirements are triggered when three (3) or more employees have COVID-19 in the workplace. Under the previous ETS, the outbreak requirements were triggered by three (3) or more COVID-19 cases in the workplace, whether the COVID-19 cases were employees or not. Additionally, an outbreak determination of a local health department will no longer trigger the outbreak testing requirements of the ETS. The revised ETS also narrows the group of employees that need to be tested in the event of an outbreak. For instance, if the COVID-19 case worked in a distinct crew or shift that does not overlap with another shift or crew, only the employees within that distinct crew or shift need to be tested.
Employer-Provided Housing & Transportation. Employers are exempt from the regulations for employer-provided housing & transportation if all employees are fully vaccinated.
We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Charles H.W. Foster
Ballard Rosenberg Golper & Savitt, LLP
