Special thanks to our summer associate Janice Lin for her contributions to this post.

Confused yet by Cal/OSHA’s frequent changes to California’s Emergency Temporary Standard (ETS)? If so, there is a new development that might help clear things up.

Last night (June 9), the Standards Board that established the ETS changed its mind for the third time in less than one week, and withdrew amendments to the ETS that were approved on June 3.  As a result, the existing ETS adopted in November 2020 remains in effect, and requires California-based employees to continue to wear face coverings indoors and physically distance-regardless of vaccination status-at least until June 17.

The June 9 Standards Board meeting

The Standards Board called last night’s meeting to consider new guidance from the California Department of Public Health (CDPH) that largely aligns California’s face covering and distancing rules with Centers for Disease Control and Prevention’s (CDC) guidance for fully vaccinated people. The CDPH’s new face covering guidance applies to members of the general public, and not employees, who remain subject to the ETS.

As we discussed in our blog post here, on June 3, the Standards Board first voted down but then approved proposed amendments to the ETS. Those amendments would have required California-based vaccinated employees to continue wearing face coverings indoors indefinitely, notwithstanding the recent CDC guidance saying vaccinated persons do not need to wear face coverings in most settings. The amendments would have made numerous other changes to the ETS, including requiring employers to provide N95 respirators to unvaccinated employees, and regulating “outdoor mega events” (events that include over 10,000 participants or spectators outdoors).

CDPH confirms its guidance is not specific to employees

During last night’s Standards Board meeting, a representative of the CDPH confirmed that CDPH has issued new mask and physical distance rules for the general public that mostly align with the CDC’s guidance for vaccinated persons. The CDPH representative reiterated, however, that the CDPH guidance (which will take effect June 15) is not specific guidance for employers and workplaces, and that employers instead should continue to look to the Cal/OSHA ETS for specific precautions employers and employees must take.

Cal/OSHA’s change of heart – and the board’s vote to withdraw

Following the CDPH’s presentation, the staff attorney for Cal/OSHA reported during the meeting that the Division will provide the board with proposed amendments to the ETS that will largely align with the CDPH and CDC guidance, in time for a vote on the amendments by the next board meeting on June 17. These comments reflect a significant change in the Division’s position, and likely are the result of the intense pressure the agency has faced since it first proposed requiring vaccinated employees to wear masks indoors indefinitely.

In light of the agency’s change in position, the board discussed-and later voted unanimously-to withdraw the June 3 amendments to the ETS, but not before providing the Cal/OSHA staff attorney with feedback on components of the ETS they would want to see in any newly proposed amendments, including:

• Requiring employers to provide N95s to unvaccinated employees, subject to N95 respirators being generally available for purchase by employers.
• Suggesting that employees should not be allowed to self-certify their vaccination status, and instead that employers should be required to obtain “proof” of vaccination through a medical record, such as the CDC vaccination card.
• Incorporating a “surge protection” provision into the ETS that would allow Cal/OSHA to implement stricter standards if there is a surge in cases.
• Requiring employers to maintain physical partitions (i.e., plexiglass dividers) that are currently required under the ETS, notwithstanding the relaxation of physical distancing requirements.

Continued masking and physical distancing until at least June 17, regardless of vaccination status

The board’s withdrawal of the June 3 amendments leaves the existing ETS in effect. That means that, at least through June 17, California-based employees must continue to wear face coverings indoors and outdoors when close to other persons, even if they are fully vaccinated. Specifically, employers must provide face coverings and ensure they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, and where required by orders from the CDPH or local health department, except face coverings do not need to be worn:

1. When an employee is alone in a room.
2. While eating and 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 possible.
3. When employees are wearing respiratory protection in accordance with Cal/OSHA’s respirator standard.
4. If employees 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.
5. 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, and the unmasked employee shall be at least six feet away from all other persons unless unmasked employees are tested at least twice weekly for COVID-19.

With respect to physical distancing, the ETS requires employees to maintain six feet of separation from other persons, again regardless of vaccination status, except where an employer can demonstrate that six feet of separation is not possible, and except for momentary exposure while persons are in movement.

What happens next?

On June 17, the board will reconvene to discuss how to address portions of the ETS that misalign with current CDC and CDPH guidelines, and will likely consider new amendments to the ETS that will allow vaccinated employees to forgo masks and physical distancing in most workplace settings. The board also could vote on June 17 to withdraw the ETS entirely. If the board withdraws the ETS, its withdrawal should be effective immediately (i.e., June 17). If instead the board votes to approve amendments to the ETS on June 17, the earliest those amendments would take effect would be June 27.

Employers should watch for developments and check back for an update after the June 17 meeting. As always, contact your Baker McKenzie employment attorney for assistance navigating these issues or other employment needs.