California employers who have been eagerly awaiting amendments to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) could be in luck. The Cal/OSHA Standards Board is scheduled to meet June 3, 2021 to consider and vote on proposed amendments to the ETS (see June 3, 2021 Board Meeting Agenda, here).
The Standards Board was originally scheduled to vote on proposed amendments at a May 20, 2021 meeting, but that vote was deferred to June 3 to allow Cal/OSHA to consider the Centers for Disease Control and Prevention’s (CDC) May 13 update to its Interim Public Health Recommendations for Fully Vaccinated People and to present a new proposal to the Standards Board. The updated CDC guidance provides that individuals who are fully vaccinated can largely go without masks or physical distancing in most indoor and outdoor settings, with certain exceptions, including a deferral to applicable law and local business and employer workplace practices and rules (as explained in our prior blog here). In light of the CDC update, California Health & Human Services Agency Secretary Dr. Mark Ghaly announced on May 17 that “California plans to implement the CDC’s guidelines around masking to allow fully vaccinated Californians to go without a mask in most indoor settings” starting June 15, 2021. Cal/OSHA vowed to limit any potential changes to the proposed amendment to consideration of the updated CDC guidance in order to meet the targeted June 15 effective date for the ETS amendments.
The proposed amendments originally set to be considered and voted on at the May 21 meeting incorporated several key changes (which now may be modified given the CDC’s May 13 guidance), including:
- Fully vaccinated employees would no longer be required to wear masks or physically distance, as long as all individuals in the location are all fully vaccinated and asymptomatic.
- Fully vaccinated employees, or asymptomatic employees who have fully recovered from COVID-19 in the last 90 days, would no longer need to be offered COVID-19 testing or excluded from the workplace after a close contact exposure with COVID-19.
- Employees who wear respirators would be exempt from the ETS physical distancing requirement (but the use of such respirators must be administered in compliance with Cal/OSHA’s respiratory protection standard).
- Instead of addressing a COVID-19 exposure based on an “Exposed Workplace,” employers would address it based on an “Exposed Group”-a definition that takes into account different shifts of employees, the wearing of face coverings, and the amount of time a COVID-19 case spends in a given area to narrow the employer’s obligations (in terms of investigating, contact tracing, notification, required reporting, etc.) under the ETS for a COVID-19 case.
The Standards Board anticipates posting the text of the new proposed amendments (as well as a meeting notice and Finding of Emergency) on May 28 on the Cal/OSHA website-and those who want immediate notification when the new proposed text has been posted can add their names to a mailing list.
Stay tuned for additional updates regarding the Cal/OSHA ETS amendments, and for your other employment related needs, contact your Baker McKenzie employment attorney.