We have been waiting so long to say…California is open again! Yet, our excitement is slightly tempered because employers are still required to maintain certain COVID-19 policies and procedures in the workplace. While there has been quite a bit of confusion over the last couple of weeks regarding exactly what employers would be required to do following the June 15 grand reopening, we have finally received some clarity!
On June 17, 2021, Cal/OSHA’s Standards Board voted to adopt Revised COVID-19 Prevention Emergency Temporary Standards(“Revised ETS”), which closely align with the recent updated guidance issued by the Centers for Disease Control and Prevention (“CDC”) and California Department of Public Health (“CDPH”). Almost immediately thereafter, Governor Newsom signed Executive Order N-09-21, which allows the Revised ETS to take effect immediately, instead of waiting the typical 10 day review period.
Although the Revised ETS brings some great news for employers since many of the burdensome mandates have been modified or eliminated (e.g., physical distancing and disinfecting), there are still many requirements that employers must implement and enforce. Accordingly, it is extremely important for employers to make all necessary changes to ensure their operations remain compliant with the new standards. The following is a summary of the key changes set forth in the Revised ETS.
Regardless of the method an employer chooses to use to document vaccination status, employers should be sure to give specific instructions to employees when asking vaccination question to avoid eliciting any protected medical or religious information. For example, employers may consider instructing employees to “only answer yes or no” to the question and to “not disclose any medical, religious or any other information in response to the question.”
Cal/OSHA has also confirmed that since employers are not obligated to require employees to submit proof of being fully vaccinated, employees have the right to decline to state whether they are vaccinated or not. If an employee exercises that right, the employer must treat the employee as unvaccinated, and must not take any disciplinary or discriminatory action against the employee.
Employers are reminded that information about an employee’s COVID-19 vaccination status is confidential medical information. Accordingly, employers should consult counsel before implementing any program that explicitly identifies any employee as vaccinated or unvaccinated. Since employees may elect not to wear face coverings for reasons other than being fully vaccinated (e.g., medical or religious accommodations), simply allowing an employee to not wear a face covering is not treated as conclusive proof that the employee is vaccinated. For additional guidance regarding COVID-19 vaccines and employer’s obligations under the ADA, EEOC and other laws, review the most recent EEOC Guidance.
Cal/OSHA has indicated it will hold on-line training seminars regarding the Revised ETS, which will also be recorded so they can be viewed at your convenience. Additional resources we recommend employers review are as follows:
Although we are grateful for the resources Cal/OSHA has provided thus far, many of us want to know when the Revised ETS (and all other COVID-19-related requirements) will finally come to an end. During the June 17 meeting of the Cal/OSHA Standards Board, Cal/OSHA confirmed that since the Revised ETS is currently a “temporary” standard, it will automatically expire within 210 days, unless action is taken by the Cal/OSHA Standards Board to extend or further amend the Revised ETS. We will of course continue to follow this matter closely and provide an update when we have confirmation.
Once again, employers are faced with trying to understand and implement new, different and modified COVID-19 requirements for the workplace. To assist in focusing your task list, we offer the following 5 suggestions:
Finally, as always, we recommend you consult with your employment law counsel to ensure the specific circumstances of your operation are in compliance with the current requirements.
We continue to count the days until we can eliminate COVID-19 from our email correspondence with each of you. Until then, we remain available and thankful for the opportunity to work with our amazing clients.
Phone: (209) 599-5003
Fax: (209) 599-5008