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Robin Samuel

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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.Continue Reading The More Things Change, the More They Stay the Same: Cal/OSHA Standards Board Reverses Course and Votes to Withdraw ETS Amendments it Approved Last Week

As we previously reported here, the California Occupational Safety and Health Standards Board voted last week to amend Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) so that new mask and physical distance rules will apply in California workplaces effective June 15, 2021.  Now, less than four days later, the Standards Board has called a special board meeting for June 9 to consider “new information from the California Department of Public Health on pending guidance regarding COVID-19 Prevention, and take action if appropriate.” The Standards Board will hold this special meeting in advance of its regularly-scheduled Standards Board meeting on June 17.  Employers should watch this new twist in the Cal/OSHA ETS saga closely.
Continue Reading NSFW: There Is Yet Another Twist in the Continuing Saga of Cal/OSHA’s Mask and Distance Mandates for California Workplaces

Mark Twain never actually said “The reports of my death are greatly exaggerated.”  But had he sat in on yesterday’s (June 3, 2021) Cal/OSHA Standards Board meeting, he might have said something similar about the proposed amendments to Cal/OSHA’s COVID-19 Emergency Temporary Standards (“ETS”).

And no one would blame him because, less than an hour after voting to reject the proposed amendments to the ETS, Cal/OSHA’s Standards Board completely changed course by voting unanimously to approve the amendments. The amended ETS, which will apply to most California employers and workplaces, is expected to take effect June 15.

What does this mean for California employers?

In summary, the amendments will require employees who work indoors to continue wearing face coverings indefinitely, except in certain limited circumstances, but also will allow employers to relax physical distancing requirements after confirming which employees are fully vaccinated and providing unvaccinated employees with respirators for their voluntary use.Continue Reading Cal/OSHA Board Votes to Approve Amendments to COVID-19 ETS Almost Immediately After Voting To Reject Them

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).Continue Reading Cal/OSHA Signals That It Intends to Require Masks and Physical Distancing Throughout the Summer — In Stark Contrast to California’s Targeted Reopening Date of June 15

Employers have been awaiting guidance from the EEOC on vaccine-related incentives since the EEOC stated in April 2021 that it would issue new guidance (but declined to state when). Now, they have it. On May 28, 2021, the EEOC issued updated and expanded COVID-19 guidance in its technical assistance document “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updated guidance provides clarification and supplements the original December 2020 version of Section K (“Vaccines”) of the technical assistance.

Key updates regarding incentives include:

  • From a federal EEO standpoint, employers administering vaccines to their employees can offer incentives for their employees to be vaccinated, as long as the incentives are not coercive-but a large incentive could make employees feel pressured to disclose protected medical information by way of pre-vaccination disability-related screening questions.
  • Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. Employers must keep vaccination information confidential pursuant to the ADA.

Notably, the EEOC stated in this update that it is beyond the EEOC’s jurisdiction to discuss the legal implications of the Emergency Use Authorization (EUA) status of the three COVID-19 vaccinations or the Food and Drug Administration’s (FDA) approach to vaccine authorization–a response to “many inquiries” the EEOC received about the type of authorization granted the vaccines by the US Department of Health and Human Services (HHS) and the FDA.Continue Reading EEOC Updates its COVID-19 Technical Assistance: Employers Administering Vaccines Can Offer Non-Coercive Incentives to Employees

As vaccination rates increase, officials across the country are reconsidering their health and safety protocols and workplace reopening guidance. Here are a few of the most recent changes that employers need to know.

On-site Employee Health Screening No Longer Required in San Francisco but Masks and Distancing Remain

On May 20, 2021, San Francisco’s Department of Public Health updated the city’s Health Order to loosen COVID-19 restrictions. Under the new rules, businesses are no longer required to perform health screenings for all personnel and patrons, unless required by the state. Public health officials credited the ongoing vaccination effort in bringing COVID-19 cases to the lowest levels seen during the pandemic. As of May 19, 76% of eligible San Francisco residents have been vaccinated, one of the highest vaccination rates in the country.Continue Reading The Shifting Sands of COVID-19 Regulations: New Rules Regarding Health Screening, Vaccine Cards and Vaccine Passports

On May 18, 2021, Santa Clara County became among the first jurisdictions in the world to issue an Order requiring employers to determine if employees are vaccinated. Santa Clara County employers will need to move quickly, because the Order requires compliance within two weeks.

Here’s what Santa Clara County employers need to know now to…

We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The following jurisdictions extended their state-wide orders and/or the duration of the current phase of their reopening plans: Maryland, New

…

On May 13, 2021, the CDC updated its Interim Public Health Recommendations for Fully Vaccinated People. Now, individuals who are fully vaccinated no longer need to wear a mask or physically distance in most indoor and outdoor settings, with a handful of exceptions (doctor’s offices, hospitals, planes, trains, airports, and transportation hubs), or unless…