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Jun 17, 2021

CALIFORNIA: Cal/OSHA proposes changes to COVID-19 rules

COVID-19Safety and HealthWage and Hour 

June 17, 2021, the California Occupational Safety & Health Standards Board (OSHSB) approved revisions to Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) for non-health care workplaces. (We summarized the original ETS here and reported on the related FAQs here.) The OSHSB will now send the proposal to the Office of Administrative Law (OAL) for final review. The OAL has up to 10 days to review the rule; if they approve it, the final rule and effective date will be posted on the OSHSB’s web page for COVID-19 prevention. We anticipate the effective date will likely be on or around June 28, 2021.

The rules for the general public loosened significantly on June 15, 2021, California’s official “reopening.” As of that date, members of the general public aren’t subject to physical distancing requirements or capacity limits in most venues, and fully vaccinated people don’t have to wear masks indoors, according to the reopening fact sheet, reopening FAQs, and guidance for the use of face coverings from the California Department of Public Health (CDPH).

The workplace requirements in Cal/OSHA’s ETS mostly align with the rules for the general public, but nonetheless impose numerous obligations on California employers. Here are some of the key differences in the latest revision compared to the original (current) ETS:

Fully vaccinated employees: The new rules exempt fully vaccinated employees from some requirements but are silent on how to verify that at least 14 days have passed since their final dose of the vaccine. Fortunately, Cal/OSHA's FAQs on Proposed Revisions to the ETS (updated June 14, 2021) offer guidance: (1) Employees may show proof of vaccination (vaccine card, image of vaccine card, or health care document showing vaccination status) and you may retain a copy; (2) Employees may show proof of vaccination and you may simply keep a record that they provided proof, without retaining a copy of the document; or (3) Employees may self-attest that they’re fully vaccinated and you may keep a record of their attestation. The exceptions for fully vaccinated employees also apply to employees with natural immunity during the 90-day period after they contracted COVID-19.

Testing: You must offer free COVID-19 testing during paid time (which no longer needs to be during regular working hours) to: (1) Unvaccinated employees who exhibit symptoms of COVID-19, even if they don’t have a work-related exposure (this is a new requirement); (2) Unvaccinated employees after they have a close contact at work (i.e., they were within six feet of a COVID-19 case for a cumulative total of 15 minutes in any 24-hour period during the “high-risk exposure period”); (3) Vaccinated employees and employees within a 90-day period of natural immunity after contracting COVID-19, if they develop symptoms after a close contact at work; (4) Unvaccinated employees in an ordinary outbreak (in which three or more COVID-19 cases visited the workplace during their high-risk exposure period within any 14-day period); and (5) All employees, regardless of vaccination status, in a major outbreak (in which 20 or more employee COVID-19 cases visited the workplace during their high-risk exposure period within a 30-day period). The high-risk exposure period begins two days before symptoms develop or a positive specimen is collected and end 10 days after symptoms began (as long as symptoms have improved and 24 hours have passed with no fever, without the use of fever-reducing medications) or 10 days after the specimen was collected (if the person never developed symptoms).

Face coverings: Your obligation to provide face coverings and ensure they are worn generally applies only to employees who aren’t fully vaccinated and are indoors or in vehicles (or when required by orders from the CDPH). However, in outbreaks, all employees in the exposed group must wear face coverings when indoors, or outdoors if unable to keep at least six feet apart from others outdoors, with limited exceptions such as working alone. You must ensure that required face coverings are worn over the nose and mouth. Face coverings include not only cloth face coverings but also surgical masks, medical procedure masks, or respirators worn voluntarily. A cloth face covering must have at least two layers of tightly woven fabric or non-woven material, and doesn’t include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric. Your COVID-19 training must address employees’ right to request free face coverings from you and their right to wear face coverings at work regardless of their vaccination status.

Physical distancing: Physical distancing requirements have been eliminated except in outbreak situations. The original requirement to install cleanable solid partitions between employees working in fixed locations where physical distancing can’t be maintained has been eliminated. However, you must consider imposing physical distancing requirements of at least six feet and installing partitions (when six feet of distancing isn’t feasible) during ordinary outbreaks and you must do so during major outbreaks.

Offer of voluntary respirators: You must offer respirators (such as N95 masks) for voluntary use to unvaccinated employees who request them, if the employees work indoors or in a vehicle with other people. During an ordinary outbreak, you must notify employees in the exposed group that they have a right to request a respirator for voluntary use if they’re not fully vaccinated. During a major outbreak, you must offer respirators for voluntary use to everyone in the exposed group, regardless of vaccination status or requests by exposed employees. Keep in mind that employees’ voluntary use of a respirator triggers certain evaluation and notice requirements. For more information, see our Model Form, Respirators: Requirements for Voluntary Use.

Indoor ventilation: For indoor locations, in addition to existing requirements to maximize ventilation with outdoor air and the highest level of filtration efficiency, the new rules require considering whether portable or mounted High Efficiency Particulate Air (HEPA) filtration units, or other air cleaning systems, would reduce the risk of transmitting COVID-19. To aid in your assessment, you must now review the California Department of Public Health (CDPH)’s Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments. In an outbreak situation, for buildings with mechanical ventilation, you must filter recirculated air using filters that have a Minimum Efficiency Reporting Value (MERV) value of 13 or higher, although if those filters aren’t compatible with your ventilation system, you must use the highest compatible filtering efficiency.

Written COVID-19 prevention program: The rules still require maintaining this prevention program, although the physical distancing section has been eliminated, the required training elements have been beefed up, and a variety of other updates were made, many of which are captured in other sections of this article.

Exclusion of COVID-19 cases and employees who had a close contact. For employees who are excluded from the workplace because of a close contact that occurred at work, you’re still required to pay for their missed wages, and the rule now warns that existing wage payment rules and remedies apply if you fail to do so at employees’ regular rates and on their regular paydays. If you determine that an exception applies to your obligation to pay wages (because the close contact wasn’t work-related or the employee received disability payments or was covered by workers’ comp and received temporary disability payments), you now have an obligation to notify the employee of your denial and the exception that applies.

COVID-19 Prevention in Employer-Provided Housing: Three exceptions have been added, so this section of the new rule doesn’t apply to: (1) Employees covered by Cal/OSHA’s aerosol transmissible diseases standard (such as health care workers), when covered by that standard; (2) employer-provided housing used exclusively to house COVID-19 cases or for single-worker housing units; or (3) Housing in which all residents are fully vaccinated. To the extent feasible, you must now assign employee residents to distinct groups and ensure that the groups remain separate during transportation and work. Physical distancing requirements between beds have been eliminated. The new rules require that if there isn’t a MERV 13 or higher filter in use, you must install portable or mounted HEPA filters, if feasible, in all sleeping areas where two or more residents aren’t fully vaccinated. You must also communicate to residents your policies and procedures for COVID-19 testing if they have a close contact. The new rule clarifies procedures for quarantining residents who have had a close contact.

COVID-19 Prevention in Employer-Provided Transportation: Four new exceptions have been added, so the new rule doesn’t apply to: (1) Drivers who are alone in a vehicle; (2) Employees covered by Cal/OSHA’s aerosol transmissible diseases standard (such as health care workers), when covered by that standard; (3) Vehicles in which all employees are fully vaccinated; or (4) Public transportation. To the extent feasible, you must now assign employees sharing vehicles to distinct groups and ensure that the groups remain separate during transportation, work activities, and in employer-provided housing. When employees are waiting for transportation, you must ensure they comply with face covering requirements, if applicable. You must provide face coverings to all employees who aren’t fully vaccinated and require them to be worn unless an exception applies, such as an employee being alone in a vehicle.

Tips: There were too many proposed changes to capture each one here, so you should read the complete proposal and evaluate what steps you’ll need to take if/when it takes effect. If the OAL approves this new rule, we anticipate Cal/OSHA will further update its FAQs and other COVID-19 guidance and resources. Once approved by the OAL, the ETS may remain in effect for up to 210 days, with possible extensions. Questions about this rule or any safety compliance issues? Contact your Vigilant safety professional.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.