We are pleased to share a recent SHRM article, “Who Can Know About Employee Vaccination Status,” quoting Emily Harbison. This article covers employers questions about when supervisors can be told about employees’ vaccination status and whether workers can wear badges indicating they’ve been vaccinated. The answers are complicated by the fact that vaccination status is
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.
With Cal/OSHA, the only constant is change. In an unprecedented move, Cal/OSHA has published FAQs explaining and interpreting the proposed amendments to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) before the Standards Board has voted to approve the amendments, with the vote not scheduled to occur until June 17. Cal/OSHA’s publication of these FAQs in advance of the June 17 vote is unusual, and demonstrates the agency’s desire to quickly implement the amendments once the vote occurs. The advance publication of the FAQs is yet another indication of how that vote is expected to go.
And Governor Newsom has weighed in, stating that if the board votes to adopt the proposed amendments, he will sign an executive order on June 17 codifying that vaccinated workers do not have to wear masks-eliminating the normal 10-day administrative review period before the amendments would otherwise take effect. (Anyone who attended Cal/OSHA’s June 3 board meeting-with approximately 8 hours of public comment and a vote that didn’t occur well into the evening-might wonder whether Governor Newsom would be able to take executive action the same day. But the June 17 board meeting starts at 10:00 a.m. Pacific and the agenda limits public comment to 2 hours-leaving ample time for a vote and for Governor Newsom to act.)
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.
On June 10, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued updated guidance on mitigating and preventing the spread of COVID-19 in all workplaces. Though employers in all industries have been waiting for months for OSHA’s expected issuance of Emergency Temporary Standards (ETS), OSHA only issued an ETS applicable to healthcare workers, effectively ending the likelihood of COVID-19 emergency standards for other business sectors.
The updated guidance, which largely aligns with current CDC guidance, focuses on encouraging COVID-19 vaccination and protecting unvaccinated and otherwise at-risk workers. The guidance states that except for workplace settings covered by OSHA’s ETS (for healthcare settings) and mask requirements for public transportation, “most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.”
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.
In April, California Gov. Gavin Newsom signed a statewide right-to-recall law — S.B. 93 — affecting certain employers. One of the key provisions of the new law, which has not been subject to much discussion, is how it affects corporate transactions.
In this article, we discuss how this new statute that could present challenges for …
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.
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).