Special thanks to our summer associate Janice Lin for her contributions to this post.
The Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) saga is over. As predicted (see our blog here), and after the dizzying flutter of proposals, board meetings, emotional public comment, and votes to reject, approve, and withdraw prior amendments (see here, here, here, and here), the Cal/OSHA Standards Board finally voted to align the ETS with CDC guidance at its June 17 board meeting. Governor Newsom signed Executive Order N-09-21 in conjunction with the vote, making the new ETS effective immediately.
As a result, California employers – finally – can harmonize their workplace mask and distancing rules with the rules applicable to non-workplace settings.
What are the highlights?
- Fully-vaccinated employees can work without face coverings indoors (as long as their vaccination status is documented, which can be by self-attestation, though the issue will be discussed at a June 21 COVID-19 Prevention Subcommittee meeting over board member concern about its reliability). There are exceptions for some employees in certain indoor settings who must wear a face covering regardless of vaccination status if required by the CDPH.
- Regardless of vaccination status, employees are not required to wear face coverings outdoors unless there is an outbreak (defined as 3 or more people in an exposed group of employees testing positive for COVID-19 within a 14-day period).
- For unvaccinated employees, face coverings are still required indoors and in vehicles even though physical distancing requirements have been eliminated.
- Employers must supply unvaccinated employees with N95 respirators upon request by employees. Employers are allowed to poll their employees on who actually wants an N95 mask before ordering, and a Cal/OSHA representative stated during the meeting that Governor Newsom is arranging for increased N95 mask distribution to help employers provide them to employees who need them.
- There are no physical distancing or barrier requirements regardless of employee vaccination status, except that employers must evaluate whether physical distancing and barriers are necessary during an outbreak (3 or more cases in an exposed group of employees). Employers also must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees).
- The stringent disinfection protocol required by the prior ETS has been eliminated, and employers can revert to general cleaning guidelines.
- Fully vaccinated employees who are asymptomatic do not need to be tested or quarantined after close contact with COVID-19 cases, but employers must offer all employees (regardless of vaccination status) COVID-19 testing after an exposure when they show symptoms.
New board agenda item: more permanent infectious standards
At the meeting, the board expressed concern over the fact that the ETS will expire at some point, which will require discussion of more permanent infectious standards and plans. The board plans to discuss more permanent standards now that urgent discussions regarding the ETS are over.
The COVID-19 Prevention Subcommittee will meet again on June 21. The stated purpose of the meeting is fairly benign: to establish a working format for the subcommittee, to elect a chair for the subcommittee and a liaison to work with the division. However, the two-hour public meeting will allow for one hour of public commentary, and board members’ concern about the reliability of self-attestation for fully-vaccinated employees will be discussed-meaning the actual purpose of the meeting remains to be seen.
What should employers do now?
Employers should closely review the new ETS and the FAQs on the new ETS (which Cal/OSHA posted in advance of the June 17 vote: see our blog here) to ensure compliance. If employers want additional information, a Cal/OSHA representative stated at the June 17 meeting that Cal/OSHA will host a webinar next week discussing the ETS (which will be recorded and available online). As always, contact your Baker McKenzie employment attorney for help interpreting and implementing the new ETS and for your other employment needs.