Co-authored by Michael Thompson

Yesterday, July 8, 2021, Zaller Law Group hosted a webinar with a speaker from Cal/OSHA discussing the revised Emergency Temporary Standards (ETS) and what changes employers need to be aware of going forward.  Here are five key takeaways from the webinar we thought were interesting:

1. Managers and supervisors need to know vaccination status to enforce masking requirements.

The revised ETS requires employers to provide employees who are not fully vaccinated with face coverings of at least 2 layers or more and ensure they are worn over the nose and mouth when indoors, in vehicles and when required by orders from the CDPH.

The revised ETS provides exceptions to this general rule for: an employee who is alone in a room or vehicle, while eating or drinking provided employees are six feet apart or outside, employees wearing respirators, employees who cannot wear face coverings due to a medical or mental health condition or disability or who are hearing-impaired or communicating with a hearing-impaired person, or when an employee performs specific tasks which cannot be performed with a face covering.

Employers must also provide face coverings to employees upon request, regardless of their vaccination status.

For employers who want to permit fully-vaccinated employees to work without face coverings, an inevitable question is how to balance the confidentiality of vaccination information with the need to ensure that unvaccinated employees who are required to wear face coverings do so? Cal/OSHA clarified that where managers and supervisors are required to enforce employee masking requirements, it is appropriate for them to know which employees are fully-vaccinated.

2. If employers send employees to customers establishments to perform work, the employer may comply with customer’s requests to only have employees working who have been vaccinated.

The Department of Fair Employment and Housing (DFEH) set forth that employers may require employees to receive an FDA-approved vaccination under California law.  However, employers must not discriminate against or harass employees or job applicants on the basis of protected characteristics, and must provide reasonable accommodations for disabilities or sincerely-held religious beliefs or practices.  Therefore, Cal/OSHA explained that employers may comply with customer’s requests to only have vaccinated employees working at their location.  However, employers must still provide employees with reasonable accommodations for disabilities or religious beliefs.

3. Masks designated as KN95 are acceptable as face coverings, but not as respirators.

The revised ETS defines “face covering” as 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.  A face covering has with no visible holes or openings and must, which covers the nose and mouth.  A face covering does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.

“Respirator” is defined as a respiratory protection 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.

Cal/OSHA explained that the “KN95” designation for masks is a Chinese designation, and this is not the same as a “N95” mask.  KN95 masks are not as effective of the N95 masks (plus there have been many counterfeit KN95 masks) and while acceptable as face coverings, KN95 masks do not qualify as “respirators” under the ETS.

4. Section 3205.3 and 3205.4 of the ETS addressing employer-provided housing and transportation may apply to temporary employee travel, such as conferences.

Although the generally-applicable section 3205 of the ETS contains the requirements that most employers need to know, the ETS actually has five sections. Sections 3205.1 and 3205.2 set forth heightened requirements where a workplace has had multiple employees test positive for COVID-19 in a short span of time. Section 2305.3 regulates employer-provided housing. Section 3205.4 regulates employer-provided transportation.

Many employers do not provide employee housing and do not regularly have employees traveling in groups, and so may forget these sections exist. But don’t fail to consider situations where employees may temporarily travel for work, including conventions and retreats. In those situations, Cal/OSHA advises that employers should review these specific sections to ensure compliance.

5. The revised ETS expires on January 14, 2022, but it is possible for Cal/OSHA to issue additional revisions and extend the expiration date.

In addition, the representative from Cal/OSHA discussed the possibility of Cal/OSHA making portions of the ETS permanent for California employers.  Therefore, it is critical for employers to continue to monitor any developments and revisions to the ETS to ensure compliance.