The Cal/OSHA Standards Board just released its latest round of proposed amendments to Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS). If adopted, the new amendments will allow all employees to forgo physical distancing at work regardless of vaccination status. And vaccinated employees will be able to take off their masks, even while indoors. The changes are expected to take effect June 28, but may be implemented sooner.
The proposed amendments represent another dramatic reversal of the workplace rules for California employees, and effectively will relax those rules beyond current Centers for Disease Control and Prevention (CDC) guidance, which still recommends that unvaccinated persons physically distance both indoors and outdoors.
The Standards Board released the new proposed amendments just two days after the board voted to withdraw other revisions to the ETS that were already pending administrative review. We blogged here and here about how the board reversed course at its June 9 meeting, voting to withdraw amendments to the ETS it had approved just days prior at its June 3 meeting.
Now, the Standards Board will consider and vote on the latest amendments on June 17 – so employers should not take any action just yet. As we have seen, the Standards Board can quickly change its positions on ETS amendments.
The same day the Standards Board released the latest proposed amendments, Governor Newsom expressed “confidence” that Cal/OSHA would align its rules with CDC guidance for vaccinated persons and California’s plan to eliminate almost all masking and social distancing requirements for vaccinated people on June 15. In a press conference, Newsom said of the Standards Board, “You know where we are going. I anticipate that their action will be consistent with the CDC, but they have to make that decision.” Newsom also said he expects to take executive steps to speed up the 10-day period required for administrative review if the Standards Board votes to approve the proposed ETS amendments on June 17, meaning the new rules could take effect some time between June 17 and June 28.
The proposed amendments will make numerous changes to the ETS (a redline showing changes to the current, in-effect ETS is here), but the highlights include:
Physical distancing requirements will effectively be eliminated
Employees will no longer have to socially distance at work, even if they are not fully vaccinated. The only times physical distancing will be requires are as follows:
- If the employee cannot wear face coverings due to a medical or mental health condition or disability, or if the employee is hearing-impaired or communicating with a hearing-impaired person, and also is not wearing an effective non-restrictive alternative, such as a face shield with a drape on the bottom, and is not fully vaccinated or is not tested at least weekly for COVID-19.
- If the employee cannot wear face coverings because the employee is performing specific tasks which cannot feasibly be performed with a face covering on, and also is not wearing an effective non-restrictive alternative, such as a face shield with a drape on the bottom, and is not fully vaccinated or is not tested at least weekly for COVID-19.
- Following an outbreak of three or more cases in an exposed group, employers must evaluate whether to implement physical distancing of at least six feet between persons or, where six feet of physical distancing is not feasible, to use cleanable solid partitions of sufficient size to reduce COVID-19 transmission.
- Employers also must investigate outbreaks and implement changes to reduce the transmission of COVID-19 based on the investigation, including “considering” increasing physical distancing as much as feasible.
- Following a “major outbreak” of 20 or more cases, employers must, among other things, ensure that any employees in the exposed group who are not wearing respirators required by the employer are separated from other persons by at least six feet, except where an employer can demonstrate that six feet of separation is not feasible, and except for momentary exposure while persons are in movement.
Other than those few limited exceptions, physical distancing is not required indoors or outdoors, regardless of vaccination status. This change, if implemented, will actually be less restrictive than CDC guidance, which still recommends that unvaccinated persons maintain six feet of separation from others, both inside and outside.
Fully vaccinated employees won’t have to wear face coverings in most settings
Fully vaccinated employees will not have to wear face coverings, indoors or outdoors, as of the effective date of the ETS, unless otherwise required by California Department of Public Health (CDPH) orders (i.e., healthcare, educational, or congregate settings). In addition:
- Employees who are not fully vaccinated only have to wear face coverings when indoors or in vehicles. Employees do not need to wear face coverings outdoors, even if they are closer than six feet away from others.
- Unvaccinated employees who are otherwise required to wear face coverings indoors do not need to wear face coverings:
- When alone in a room or vehicle.
- While eating or drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent feasible.
- While wearing respirators required by the employer and used in compliance with Cal/OSHA’s respirator standard.
- If they 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.
- While performing specific tasks which cannot feasibly be performed with a face covering. This exception is limited to the time period in which such tasks are actually being performed.
- Even when face coverings are no longer required, employers must provide them to employees upon request, regardless of vaccination status.
- More restrictive face covering rules will apply for employees in an “exposed group,” including for outdoor work.
What about N95’s?
The amendments would not require employers to offer N95 respirators to unvaccinated employees. Instead, employers will have to make respirators available “upon request” to unvaccinated employees who work indoors or in vehicles with more than one person. Employees in exposed groups also will have the right to request a respirator.
Proof that a person has “received” a vaccine–and no more “outdoor mega events”
The ETS amendments still do not explain how employers must determine which employees are fully vaccinated. However, the definition of “fully vaccinated” has been revised from “the employer has obtained documentation [of vaccination status]” to “the employer has documented that the person received [a vaccine].”
This change suggests that employers may not need to obtain proof of vaccination before allowing employees to de-mask, but that is still to be determined.
Finally, the proposed amendments do away with the “outdoor mega event” concept entirely.
Employers should not make any changes just yet. The Standards Board is scheduled to vote on the amendments at its June 17 meeting. If the amendments are approved, they would normally go to the Office of Administrative Law for administrative review and could not take effect for at least 10 days, but, as we mentioned, Governor Newsom is expected to expedite the process if the amendments are passed so they can take effect before June 28. The Standards Board subcommittee on ETS amendments has scheduled a meeting for June 21 to discuss the ETS amendments, but if the amendments are approved on June 17, the June 21 discussion could be moot.
We will update you again after the vote on June 17. In the meantime, contact your Baker McKenzie employment attorney for assistance with your employment needs.