Listen to this post

Apparently Cal/OSHA is not yet ready for California workplaces to do away with masks and social distancing, despite the recent Centers for Disease Control and Prevention’s (CDC) and California state guidance allowing fully vaccinated persons to forgo masks and distancing indoors. On May 28, 2021, Cal/OSHA’s Standards Board – a seven member body appointed by the Governor that is responsible for adopting “reasonable and enforceable standards” for the agency – published proposed amendments to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) currently applicable to most worksites. Though many thought Cal/OSHA would fall in line with the California state guidance saying that vaccinated employees do not need not to wear masks or physically separate indoors as of June 15 (and leaving it up to employers to figure out how to determine who is vaccinated and who is not), Cal/OSHA appears to be leaning in a different direction.

Face coverings required indefinitely for indoor worksites

If the Standards Board approves the proposed amendments to the ETS at its upcoming June 3 meeting, Cal/OSHA will continue to require face coverings for all indoor worksites, with no end date specified. Employers will have to provide and “ensure” employees wear face coverings indoors, unless all persons “in a room” are fully vaccinated and do not have COVID-19 symptoms. In that case, the employees in that room don’t have to wear face coverings.

Otherwise, with only relatively minor exceptions for employees who cannot wear face coverings due to medical or mental health conditions or disabilities, or for tasks that cannot be performed while wearing a face covering, face coverings will be required indoors without regard to vaccination status.

For outdoor worksites, employees must wear face coverings if they are within six feet of other persons unless they are fully vaccinated and do not have COVID-19 symptoms (of course, under the ETS, employers should keep any employees who have COVID-19 symptoms away from the work place in any event).

Physical distancing is required for indoor worksites and outdoor mega events until July 31, 2021

With respect to physical distancing, the proposed amendments will require employers to choose one of two options for employees working indoors and at outdoor mega events (events that include over 10,000 participants or spectators outdoors and may include conventions, shows, outdoor nightclubs, concerts, sporting events, theme parks, fairs, festivals, large races, and parades):

  1. Option 1: Through July 31, 2021, all employees must continue to be separated from other persons by at least six feet, regardless of vaccination status, except for
    1. employees wearing respirators required by the employer and used in compliance with the Cal/OSHA respirator standard (Cal/OSHA section 5144);
    2. where an employer can demonstrate that six feet of separation is not feasible (in which case employees still must be as far apart as possible); and
    3. momentary exposure while persons are in movement.
  2. Option 2: Through July 31, 2021, employers may obtain proof of vaccination status from employees, and then provide all employees who are not fully vaccinated with respirators for their voluntary use in compliance with the respirator standard (Cal/OSHA subsection 5144(c)(2)).

The ETS amendments would define a “respirator” to mean 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.

Therefore, until at least July 31, for all indoor worksites in California (and mega outdoor events), employees must continue to physically distance regardless of vaccination status unless:

  1. They are required to wear an N95 mask (except while they are moving down hallways, etc. or working in worksites where six feet of distance is not feasible) or
  2. They are fully vaccinated–and the employer offers respirators to all employees who are not fully vaccinated for their voluntary use.

If an employer does not choose “Option 2” (i.e. providing respirators for voluntary use for all indoor and mega events employees who are not fully vaccinated), then the employer must also install cleanable solid partitions that “effectively reduce transmission between the employee and other persons” for any employee assigned to work at a work station (such as cash registers, desks, and production line stations) for an extended period of time where the physical distancing requirement is not maintained at all times.

How can employers tell who is fully vaccinated?

The ETS amendments say that employees are “fully vaccinated” when the “employer has documentation showing that the person 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 an emergency use authorization from the FDA.”  It appears the employer must obtain proof of vaccination in the form of “documentation,” but the proposed ETS amendments say nothing more on this topic.

Employers must provide respirators starting July 31, 2021 for unvaccinated indoor and mega event employees

Then, starting July 31, 2021, employers will have to provide respirators for voluntary use in compliance with subsection 5144(c)(2) to all employees working indoors or at outdoor mega events who are not fully vaccinated. Thus, even if employers don’t require employees to use N95s, employers will still be required to provide them to unvaccinated employees working indoors or at mega events for their voluntary use.

Employers likely will favor “Option 2” so that they can put aside physical distancing requirements in the workplace, allowing employees to more easily navigate tight spaces or highly populated areas. But selecting this option will require employers to dive head first into the proof of vaccine waters.

The outcome of the Standards Board vote on June 3 remains to be seen. California employers should keep an eye out for additional developments, check back here on June 3 for an update on the Standards Board vote, and contact their Baker McKenzie employment attorney for assistance navigating the quickly changing landscape of return to work guidance.