As California Reopens, Employers Look to Cal/OSHA
by James W. Ward, J.D.; Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
As COVID-19 cases continue to fall and hospitalizations stabilize, employers have maintained hope for a return to normal operations — which seemed feasible when Governor Gavin Newsom, through the California Department of Public Health (CDPH), announced a move “Beyond the Blueprint” that set a full reopen date of June 15, 2021 (contingent upon continued vaccine availability and consistently low hospitalizations).
However, even with updated guidance from the CDPH and the federal government relaxing certain COVID-19 restrictions, employers have had to focus on continued compliance with the California Division of Occupational Safety and Health (Cal/OSHA) COVID-19 Emergency Temporary Standard (ETS). Initially adopted at the end of 2020, the ETS’s purpose was to mitigate COVID-19 exposure in the workplace.
As employers are well aware, the ETS imposed numerous requirements on employers, including implementing a COVID-19 prevention program, physical distancing protocols, employee training, and testing and reporting requirements, among other things.
As the COVID-19 landscape continues to shift in 2021 and the state moves closer to its targeted reopening on June 15, 2021, California employers have been eagerly awaiting amendments to the ETS — hoping for changes that reduce workplace restrictions.
And while the Occupational Safety and Health Standards Board (OSHSB) is indeed going to adopt revisions to the ETS in the very near future — bringing it more in line with recent guidance from the CDPH and the U.S. Centers for Disease Control and Prevention (CDC) — it has not been an easy process.
And, unfortunately for employers, until a revised ETS is adopted, the original ETS remains in effect.
Two Steps Forward, One Step Back
Over the past month, Cal/OSHA and the OSHSB have been working on proposed revisions to the ETS, but they haven’t been able to keep up with the new state and federal guidance. Each time ETS revisions were proposed, they were already out of sync with the latest information.
Cal/OSHA initially proposed amendments to the ETS on May 7, 2021, and the OSHSB was scheduled to vote on the new proposed text on May 20. Agency staff, however, requested that the Board delay its vote so Cal/OSHA could make it more consistent with recent CDC guidance.
On May 13 — one week before the OSHSB was supposed to vote on the revised ETS — the CDC again updated its guidance; this time, it allowed fully vaccinated individuals to go without masks in some settings. Then, on May 17, California Health and Human Services Agency Secretary Dr. Mark Ghaly announced that starting June 15, “California plans to implement the CDC’s guidelines around masking to allow fully vaccinated Californians to go without a mask in most indoor settings.”
Pointing to these recent developments, Cal/OSHA stated that, “it is important to revisit the proposed COVID-19 prevention emergency regulations in light of this new guidance.” And added that, “The Division will limit any potential changes to consideration of the recent guidance, in order to make possible a targeted effective date of June 15, 2021.”
On May 28, Cal/OSHA published its new proposal with additional changes for the OSHSB to consider at an emergency meeting on June 3, 2021. After a day-long meeting that included hours of public testimony and internal deliberations, the OSHSB initially rejected the changes, expressing concerns about the revisions and their inconsistency with recent guidance from the CDC and the state’s June 15 “Beyond the Blueprint” reopening plan. Then, after additional discussion, the OSHSB reversed itself, ultimately adopting the revised ETS and creating a subcommittee to work quickly to address the remaining concerns. The revised ETS was scheduled to go into effect on June 15, 2021.
But wait, there’s more!
On June 7, 2021, State Health Officer and CDPH Director Dr. Tomás Aragón sent a letter to the OSHSB reiterating the state’s intent to modify its face coverings requirements to align with the CDC: That, as of June 15, face coverings will no longer be required for fully vaccinated Californians in public settings, except in settings where the CDC advises individuals wear face coverings regardless of vaccination status, such as health care settings and long-term care facilities.
This conflicted with the revisions adopted on June 3, which still required fully vaccinated employees to wear face coverings when in the same room as unvaccinated employees.
In response, the OSHSB called another emergency meeting on June 9, 2021, where it heard briefings from the CDPH and Cal/OSHA, as well as additional public comment on the issue. In light of the new information, the OSHSB voted to withdraw the revisions previously adopted on June 3, which had not yet become effective.
With the state’s new guidance in hand, Cal/OSHA is expected to make further ETS revisions that the OSHSB will consider at a future meeting, perhaps as early as their regular meeting scheduled for June 17, 2021.
Until then, the original ETS remains in effect, meaning that while the state may be reopening on June 15, Cal/OSHA’s workplace requirements — such as face coverings and physical distancing — must be followed for the time being.
COVID-19 ETS Changes Are Coming Soon
Despite the fits and starts, employers can expect the ETS to undergo revisions in the very near future. If the OSHSB approves a new proposal on June 17, 2021, the revised ETS could take effect by the end of June.
What changes will be made? Based on the first two proposals from Cal/OSHA, employers have a good idea of what a revised ETS will look like. Revisions will integrate vaccinations and change certain provisions related to physical distancing, face coverings, workplace exclusions, Personal Protective Equipment, workplace outbreaks and others. Below are some of the key changes likely coming soon.
One of the most notable ETS revisions will be the incorporation of COVID-19 vaccination and natural immunity. Both of Cal/OSHA’s proposals, including the proposal that was initially adopted on June 3 before being withdrawn, created several exceptions to ETS requirements for employees who are “fully vaccinated,” as well as some for those who have recovered from the virus and returned to work symptom-free.
Cal/OSHA’s most recent proposal defined “fully vaccinated” as the employer having “documentation” showing that the individual received, at least 14 days prior, either the second shot of a two-dose COVID-19 vaccine or a single dose vaccine. The vaccines must be FDA approved or authorized by the FDA for emergency use.
The proposed ETS, however, neither specifies what “documentation” employers should collect nor discusses recordkeeping requirements. Employers should be cautious about collecting this information, as it could raise additional compliance issues regarding the employee’s medical records and private and confidential information. Cal/OSHA will likely address the issue in subsequent guidance.
Face coverings were the main topic of the June 9, 2021, meeting and remain the main source of contention in the recent revisions. The latest Cal/OSHA proposal still required employers to provide face coverings and ensure employees wear them over the nose and mouth when indoors. It added an exception for vaccinated employees, but only when all persons “in a room” are fully vaccinated, which meant that fully vaccinated individuals would still be required to wear a face covering when around individuals not fully vaccinated. That may change in the next revision based on the June 9, 2021, face covering guidance from the CDPH.
The revised ETS may also further clarify what qualifies as a face covering. The previous proposals defined “face covering” to mean 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.” It does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar or a single layer of fabric.
A revised ETS will likely ease restrictions related to physical distancing. Under the latest ETS proposal, employers had to maintain physical distancing requirements until July 31, 2021, at which point the physical distancing provisions sunset.
Before that date, however, the proposed ETS allowed employers to satisfy the physical distancing requirement by providing N95 respirators for “voluntary use” to all non-fully vaccinated employees. If employers provided respirators for voluntary use, they also had to provide training on how to properly wear them.
New Respirator Requirement
Under the withdrawn ETS, just as physical distancing measures were relaxed on July 31, 2021, a new requirement kicked in for employers — on that same date, employers were required to provide N95 respirators for voluntary use to non-fully vaccinated employees. Under this requirement, which was in both previous ETS proposals and will likely remain in the next revision, the respirators must be the proper size, and employers must train employees on how to both properly wear the respirator and perform a seal check according to the manufacturer’s instructions.
Assuming this requirement remains in the next revision, employers will need to stock up on N95 respirators and have them on hand if they have any unvaccinated, indoor employees, and they must be prepared to train employees on their use by July 31.
Exclusion from the Workplace
The current ETS requires employers to exclude from the workplace COVID-19 cases and those who had close contact with COVID-19 cases. The proposals thus far have contained two new exceptions to the exclusion requirement:
Currently, employers must make testing available to employees who had close contact with a COVID-19 case at the place of employment. Proposed revisions create exceptions to the testing requirement for both fully vaccinated individuals and individuals who recovered from the virus, returned to work and remained symptom-free for 90 days.
Under the current ETS, employers must provide a written notice within one business day to employees and independent contractors who had close contact with a COVID-19 case. The previously proposed ETS revised the COVID-19 exposure notice requirements to bring them closer in line with the state requirements added under AB 685, but they also add a new verbal notice requirement.
Under the previous proposals, if the employer should reasonably know that an employee hasn’t received the notice, or has limited literacy in the language used in the notice, the employer must provide verbal notice, as soon as practicable, in a language understood by the employee. This new requirement was seemingly of no concern to the OSHSB and will likely be instituted in a revised ETS.
Under the existing ETS, when three or more COVID-19 cases occur in the workplace in a two-week period, additional testing and reporting requirements are triggered. Currently, this can be triggered by non-employee COVID-19 cases, such as customers or other members of the public entering a workplace. The latest ETS proposal, however, clarified that outbreak criteria are triggered only when there are three or more employee COVID-19 cases within an exposed group.
Additionally, when an outbreak occurs, testing will not be required for asymptomatic, fully vaccinated employees or for those who recovered from COVID-19 and have been asymptomatic for 90 days. Because this proposal aligns with the CDPH’s guidance, it likely will remain in the revised ETS.
Special Protections for Housing and Transportation
Under the proposed ETS revisions, the special COVID-19 prevention measures that apply to employer-provided housing and transportation wouldn’t apply if all occupants are fully vaccinated. Because this was seemingly of no concern to the OSHSB, it likely will be instituted in a revised ETS.
Though many of the proposed revisions will be helpful for employers, uncertainty remains regarding some of the changes, such as the new respirator requirements and what “documentation” employers can collect with respect to fully vaccinated individuals. After ETS revisions are adopted, Cal/OSHA is expected to address many of employers’ remaining questions on its ETS FAQ page, which it has been updating continually since the original ETS took effect in 2020.
Until a revised ETS is adopted by the OSHSB and approved by the Office of Administrative Law, employers must still comply with the current ETS. In other words, despite the June 15 reopening and the CDPH easing face covering restrictions for the general public, current Cal/OSHA workplace restrictions, including face coverings, physical distancing, etc., remain in effect.
Additionally, the next revisions to the ETS may not be the last. At its June 3 meeting, the OSHSB agreed to establish a new subcommittee to address the multitude of concerns raised during that hearing, so employers should keep an eye out for more ETS revisions over the summer.
CalChamber will continue to keep employers up to date as developments continue. But in the meantime, employers can review the latest proposed ETS to get a better sense of the changes that will likely be made over the next few weeks.