June has been a turbulent month for Cal/OSHA – and for California employers doing their best to protect the health and safety of their employees as California begins to open up.
Back and Forth
After implementing detailed and complicated amended Emergency Temporary Standards (ETS) on June 3, the Cal/OSHA Standards Board held an emergency meeting on June 9, to consider further changes to the ETS in light of the California Department of Public Health (CDPH) guidance regarding face coverings, which goes into effect June 15. In a stunning reversal, the Board voted to withdraw altogether the amended ETS that it had adopted only six days before, on June 3.
Why is this Significant?
By withdrawing its June 3 amended ETS, Cal/OSHA left California employers subject to the ETS that went into effect on November 30, 2020 – long before mass vaccinations began statewide, long before COVID statistics began dropping, and long before California began opening up.
What’s in the New Proposed ETS?
On June 11, Cal/OSHA published proposed new revisions to the ETS. While the proposed new ETS scales back significantly from the two previously proposed amendments, it retains requirements as to physical distancing and face coverings. It continues to distinguish between vaccinated and unvaccinated employees and contains new provisions regarding documentation of vaccination and required training. A few of the highlights:
-No More Physical Distancing Protocols. The prior ETS retained physical distancing protocols through July 31, 2021. But the new proposed ETS eliminates this, which is more consistent with Governor Newsom’s reopening guidelines.
-Face Coverings for Vaccinated/Unvaccinated Workers. Under the current regulations, all employees – regardless of vaccination status – must wear face coverings indoors, or outdoors when closer than six feet to each other (subject to certain exceptions). The new proposed ETS would allow vaccinated employees to not wear face coverings. For unvaccinated employees, face coverings will continue to be required indoors or when in vehicles – again, with certain limited exceptions.
-Documentation of Vaccination. The new proposed ETS contains a revised definition of “fully vaccinated,” which obligates the employer to document that the employee 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. Vaccines must be FDA approved or have emergency use authorization from the FDA. For fully vaccinated employees outside of the U.S., the vaccine must be listed for emergency use by the World Health Organization. But, the proposed revised regulations are still silent on key issues relating to the employer’s oversight obligations – must an employer obtain a copy of the employee’s vaccination card? Can an employer simply review the vaccination card? Can an employer rely on self-certification forms? If the new proposed ETS is adopted, Cal/OSHA will presumably issue guidance as to these questions on the FAQs page of its website.
-New Training Requirements. The new proposed ETS requires employers to continue to provide COVID-19 training – including on new subjects such as COVID-19 vaccination, testing access and policies, leave policies, and the employer’s respirator policies.
-N95 Masks for Unvaccinated Employees. The new proposed ETS adds the terms “upon request” regarding an employer’s obligation to provide N95 respirator masks. This implies that it is not compulsory or automatic for an employer to provide an N95 mask, but instead that the employer can wait until employees request them. Again, the Cal/OSHA FAQs page will hopefully clarify the timeframe that California employers must comply with in responding to employee requests for N95 masks.
The proposed new ETS will be considered by the Cal/OSHA Board at their regularly scheduled meeting on June 17. If adopted, the new regulations could go into effect as soon as June 28, 2021. Stay tuned – and be sure to reach out to Workplace Legal with any questions about this rapidly changing area of law.