On June 3, 2021, the Cal/OSHA Standards Board met again to vote on new proposed revisions to the Cal/OSHA Emergency Temporary Standards (ETS). As we discussed here, the Standards Board did not vote on the revisions on May 20, as originally planned. A draft of the new proposed revisions was posted on May 28 and can be found here. The revised ETS are effective June 15, 2021.
The June 3rd vote, however, was not as straightforward as anticipated. The meeting took almost all day and included hours of public comment. Initially, the Standards Board voted 4-3 to reject the May 28 revisions. This initial rejection was followed by a second vote just minutes later, which adopted the changes discussed below.
What changes were made to the ETS?
The new ETS starts by defining the term “fully-vaccinated.” Being fully-vaccinated means that employees are able to provide documentation showing that they have “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.”
Fully vaccinated employees, either when alone in a room or in a room in which all other are also vaccinated and not experiencing symptoms, are no longer required to wear face coverings. A “face covering” means “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.”
Also, the physical distancing requirement no longer applies at locations where all employees are fully vaccinated. Further, when outdoors, these individuals will no longer be required to keep six feet of distance from other unmasked employees. Fully vaccinated individuals are allowed to be outdoors without masks provided they are not experiencing COVID-19 symptoms. However, it is important to keep in mind that physical distancing will still be required until July 31, 2021 and fully vaccinated employees must still wear face coverings while indoors in the presence of individuals who have not been fully vaccinated.
Should a fully vaccinated person come in close contact with a COVID-19 case, employers are no longer required to exclude the vaccinated individual from the workplace, as long as he/she is not experiencing COVID-19 symptoms and was fully vaccinated prior to coming into contact with the infected individual. However, a fully vaccinated employee who tests positive for COVID-19 will still be required to stay out of the workplace for 10 days after the test whether experiencing symptoms or not.
Employer COVID-19 Testing Requirement
Employers are also now required to provide free COVID-19 testing during working hours to all unvaccinated symptomatic employees. This testing obligation does not apply to fully vaccinated employees
Other than guidelines regarding vaccinated employees, the new ETS addresses notice and testing requirements and the proper use of respirators.
Written Prevention Programs
In line with prior versions of the ETS, employers must still maintain written COVID-19 Prevention Programs. This written notice must include the employer’s plan for disinfecting the workplace and, information regarding the employer’s COVID-19 policies, and relay “the fact that the vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.” Although employers are still required to inform employees of close contact with a positive individual within one business day, this obligation is now triggered when the employer “knew or should have known of a COVID-19 case.”
Employer’s Obligation to Provide Unvaccinated Employees with Respirators
Beginning July 31, 2021, employers will be required to provide respirators to non-vaccinated employees. Cal/OSHA defines a respirator as a device “approved by the National institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.” Use of these respirators, however, will be voluntary. Providing these to employees relieves employers of their duty to enforce physical distancing.
Employees excluded from the workplace for COVID-19 cases and those who had close contact with COVID-19 cases are entitled to “earnings, wages, seniority, and all other employee rights and benefits” while away from the workplace. Like the prior ETS, employers can still use the employee’s sick leave for to satisfy this requirement as long as it does not run afoul to any applicable laws.
Under the new ETS, however, employers are still required to pay exclusion pay whether or not the excluded employee is able to work. This is a departure from the original version of the ETS, which did not require employers to pay exclusion pay to employees who, for any reason, could not work while away from the workplace.
It is worth noting that exceptions still apply to the employer’s obligation to provide exclusion pay. First, the employee is not entitled to exclusion pay if he/she is receiving disability payments or is covered by worker’s compensation. Additionally, if an employer can show that close contact was not work-related, the employer is not required to provide exclusion pay.
How does the new ETS compare to Governor Newsom’s reopening plan?
Since the proposed revisions were posted on May 28, many have criticized Cal/OSHA’s changes as not going far enough compared to Governor Newsom’s plans that would essentially end mask mandates and social distancing requirements as of June 15, 2021. In fact, the board members who initially voted against the revisions shared the same sentiment.
However, the Standards Board, specifically the board members who initially rejected the vote, acknowledged that the new ETS is at least a step in ultimately easing all pandemic related restrictions. Simply put, something is better than nothing. Cal/OSHA’s rejection of the proposed revisions would be taking significant steps backward as Governor Newsom marches forward with his plans to return Californian’s to pre-pandemic life.
More revisions likely to come.
In response to the criticism, the Board has created a three-person subcommittee to explore further revisions to the ETS. Subscribe to our blog for future updates on this and other important topics facing California employers as they reopen.