Given the increased knowledge about COVID-19 and the progress made by Californians in combatting COVID-19, including the 60% vaccination rate, the California Occupational Safety and Health Standards Board (“Board”) significantly changed the emergency temporary standards (“ETS”) initially implemented in November 2020.
Here is what the revised ETS standards mean for employers in California:
Are the original ETS requirements still required?
Yes and no; many of the requirements imposed on California companies in the original ETS remain in effect under the revised ETS.
For example, companies still need to provide their employees with training and instruction that covers a variety of COVID-19 related topics, including, the company’s policies and procedures regarding COVID-19, and how the company is protecting employees from COVID-19. Companies must also inform their employees of the health benefits information the company offers related to COVID-19, the importance of frequent hand washing, and the symptoms of COVID-19 so that employees can refrain from coming to work and get tested if they are experiencing such symptoms.
What are the revised standards companies should be aware of?
- Face Coverings:
- The definition of “face covering” was refined to include a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers Single-layered face coverings such as a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric do not qualify as a face covering. A face covering must have no visible holes or openings and must cover the nose and mouth.
- Employers must provide employees who are not fully vaccinated with face coverings of at least two layers or more and ensure they are worn over the nose and mouth when indoors, in vehicles and when required by orders from the California Department of Public Health.
- Employers must provide face coverings to employees upon request, regardless of their vaccination status.
- Indoors: Fully vaccinated workers without COVID-19 symptoms do not need to wear face coverings indoors. Face coverings are required indoors and in vehicles for unvaccinated employees. Employees in certain indoor settings must wear a face covering regardless of vaccination status if required by CDPH order; for example, in outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
- Outdoors: Outdoors, no employees need to use face coverings, regardless of vaccination status, unless there is an outbreak. Though face coverings are not required outdoors, employers must communicate to workers that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained.
- Physical Distancing: The revised ETS is similar to rule changes for the general public in California that eliminate physical distancing and barrier requirements regardless of vaccination status. There are no physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
- Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees); and
- Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees).
As a reminder, employers who intend to adhere to the face covering and physical distancing exceptions must have effective documentation proving that employees taking advantage of these relaxed exceptions are fully vaccinated.
- Prevention Program: Employers still must maintain a written COVID-19 Prevention Program or ensure its elements are included in an existing Injury and Illness Prevention Program, but there are some key changes in the revised ETS:
- COVID-19 prevention training must now include information on the effectiveness of vaccinations with respect to preventing COVID-19 and protecting individuals against transmitting COVID-19, as well as protecting individuals against serious illness or death due to COVID-19.
- Exclusion from the Workplace: Fully vaccinated employees who do not have COVID-19 symptoms no longer need to be excluded from the workplace after a close contact.
- Special Protections for Housing and Transportation: The revised ETS eliminates the special COVID-19 prevention measures that apply to employer-provided housing and transportation if all occupants are fully vaccinated.
During the meeting on June 17, 2021, the Board indicated that the revised ETS could remain in effect for up to 210 days, and the Board likewise retains the ability to readopt the revised ETS in the future, if needed. The Board is also considering making revisions to the revised ETS before 210 days has passed depending on whether more restrictive measures are needed due to increased COVID infection rates.
What should employers do?
- Understand what “fully vaccinated” means. The Centers for Disease Control and Prevention (CDC) considers people fully vaccinated 2 weeks after a second dose of a 2-dose vaccine, or 2 weeks after a single-dose vaccine.
- Review their training program, and policies and procedures related to COVID-19 to ensure their training, policies and procedures regarding COVID-19 comply with the requirements imposed by the revised ETS.
- Maintain records of COVID-19 cases, and report serious illnesses to Cal/OSHA and to the local health department when required.
- Review the requirements of the revised ETS that apply when there is an outbreak. An outbreak is defined as three or more COVID-19 cases among employees in an "exposed group" within a 14-day period.
If you have questions about the revised ETS and how your Company can stay in compliance with the requirements imposed by the Board, or if you have questions on any other issues relating to employment law, please contact one of our attorneys.
|Eric C. Bellafronto||Ernest M. Malaspina||Sean Bothamley|
|Karin M. Cogbill||Richard M. Noack||Jonathan Heller|
|Jennifer Coleman||Daniel F. Pyne III||Shirley Jackson|