As we previous wrote about here, on June 17, 2021, the Board for Cal/OSHA approved revisions to the Emergency Temporary Standards (“ETS”) that govern employer’s duties to fight COVID-19. The Governor signed an Executive Order making the revised ETS effective the same day. On June 18, Cal/OSHA published FAQs regarding the new revised ETS. Here are five key issues employers should understand about the newly published FAQs:
1. Important Changes Under the Revised ETS
The FAQs explain some of the changes made by the June ETS from the original November 2020 ETS. Some of these changes include:
- Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
- No face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained on CDPH recommendations for outdoor use of face coverings.
- Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status (see below for more details about documenting employee status)
- 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)
- Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
2. Documenting Vaccination Status
The FAQs note that the revised ETS requires employers to document employee’s vaccination status, but does not set forth how employers are supposed to document vaccination status and what steps must be taken to document status. FAQs provide the following are acceptable options:
- 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.
- Employees self-attest to vaccination status and employer maintains a record of who self-attests.
The FAQs also provide employers are not required to have employees submit proof of being vaccinated. The FAQs then state the employees have the right to decline to state if they have been vaccinated or not, and then employers must treat these employees as unvaccinated “and must not take disciplinary or discriminatory action against the employee.” This guidance set forth in the FAQs seems contrary to the DFEH’s guidance that employers may require employees to be vaccinated. Logically, if employers can require employees to be vaccinated, they should also have the ability to ask for proof of vaccination.
3. Testing Offered To Employees
The FAQs explain that employers must offer testing at no cost to employees during paid time to:
- Symptomatic unvaccinated employees, regardless of whether there is a known exposure. This is a new requirement.
- Unvaccinated employees after an exposure.
- Vaccinated employees after an exposure if they develop symptoms.
- Unvaccinated employees in an outbreak.
- All employees in a major outbreak.
4. When Employers Must Provide Respirators
The FAQs explain that employers must provide respirators to employees under two circumstances:
- To any unvaccinated employee who works with others indoors or in a vehicle and who requests one and
- Where there is a major outbreak (defined as 20 or more cases in an exposed group of employees), to any employees in the exposed group for voluntary use.
5. Requirements Still in Place Under the November 2020 ETS
Employers are reminded that these revised ETS change some requirements for employers, but there are many requirements that are still in place under the November 2020 ETS that employers must follow. Some of these requirements include:
- An effective written COVID-19 Prevention Program.
- Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
- Providing notification to public health departments of outbreaks.
- Providing notification to employees of exposure and close contacts.
- Requirements to offer testing after potential exposures.
- Requirements for responding to COVID-19 cases and outbreaks.
- Quarantine and exclusion pay requirements.
- Basic prevention requirements for employer-provided housing and transportation.