Revised Cal/OSHA ETS – Immediate Changes Permitted!

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.

 

1. Definitions – The Revised ETS contains some new and revised definitions, including the following:
   • Close Contact – replaces “COVID-19 Exposure”
   • Exposed Group – replaces “Exposed Workplace”
   • Face Coverings – revised definition
   • Fully Vaccinated – new definition
   • Respirator – new definition that includes N95s or other NIOSH approved devices
   • Worksite – new definition

 

1. Face Coverings

• Fully Vaccinated Employees – Face coverings are not required except in certain situations, during outbreaks and where the CDPH requires all people to wear face coverings.
• Employees Who are Not Fully Vaccinated – Employers must provide face coverings and ensure they are worn when indoors and in vehicles.
• Outdoors – Employees are not required to wear face coverings when outdoors, regardless of vaccination status, except certain employees during outbreaks.
• CDPH Orders – Employers must provide face coverings and ensure they are worn when required by CDPH orders.
• Exceptions – When employees are required to wear face coverings, the following exceptions apply. Employers must still provide face coverings to employees who qualify for an exception upon request, regardless of vaccination status.

1. • Employee is alone in a room or vehicle
   • Employee is eating or drinking, is 6 feet apart from others, and, if indoors, outside air supply has been maximized to the extent feasible
   • Employee is wearing a respirator
   • Employee cannot wear a face covering due to a medical condition, mental health condition, disability or hearing impairment
   • Employee is performing a specific task which cannot feasibly be performed with a face covering

 

1. Documentation of Fully Vaccinated Status – Employers must document an employee’s fully vaccinated status.  Although the Revised ETS does not specify how employers must document vaccination status, the FAQs identify the following acceptable options:

• Employees provide proof of vaccination in the form of a vaccination card, imagine/photo of a vaccination card or health care document showing vaccination status, and the employer maintains a copy.
• Employees provide proof of vaccination in the form of a vaccination card, imagine/photo of a vaccination card or health care document showing vaccination status, and the employer maintains a record of the employees who presented proof, but not a copy of the vaccination proof.
• Employees self-attest to vaccination status and the employer maintains a record of who self-attests.

 

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. 

 

1. Physical Distancing Eliminated – Physical distancing requirements have been eliminated, except where an employer determines there is a hazard for certain employees during a major outbreak.

 

1. Respirators – Employers must provide respirators of the correct size, at no cost, for voluntary use:

• To any employee who is not fully vaccinated and who is working indoors or in vehicles with more than 1 person, when requested by the employee.
• To any employee in an exposed group when there is a major outbreak.

 

1. Exclusion from the Workplace

• Not Required for Asymptomatic Fully Vaccinated Employees – Fully vaccinated employees who do not have COVID-19 symptoms no longer need to be excluded from the workplace after a Close Contact with a COVID-19 Case.
• Not Required for Asymptomatic Employees who Recently Had COVID-19 – Employers are not required to exclude an employee after a Close Contact to a COVID-19 Case if the employee was previously a COVID-19 Case, has satisfied the criteria for returning to work, and has remained symptom free for 90 days after initial onset of symptoms or after the first positive test if the person never developed symptoms.
• Exclusion Pay – Employees who are excluded from the workplace because they are a COVID-19 Case or following Close Contact must be paid at their “regular rate of pay” until they satisfy the criteria for returning to work, unless an exception applies.

1. • Exceptions – Employer demonstrates the Close Contact is not work related, the employee received disability payments, or the employee was covered by workers’ compensation and received temporary disability.
   • Additional Changes

• Eliminates the important exceptions that allowed employers to avoid paying exclusion pay when the employee is not “otherwise able and available to work” and the exception for “any period of time where the employee is unable to work for reasons other than protecting persons from COVID-19 transmission.”
• Creates a new requirement that if an employer determines an exemption applies, the employer “shall inform” the employee of the denial and the applicable exemption.
• Employees are permitted to bring a wage claim to recover unpaid exclusion pay.

 

1. Return to Work Criteria Following Close Contact – New criteria has been established for determining when an employee who has had a Close Contact may return to work, with different standards for employees who did and did not develop symptoms. 

 

1. Testing and Notice of Benefits

• Unvaccinated Employees with Symptoms – Employers must make COVID-19 testing available during paid time at no cost to employees with COVID-19 symptoms who are not fully vaccinated. This requirement applies regardless of whether there has been any known Close Contact, inside or outside of the workplace. 
• Following Close Contact in the Workplace – Where there is a COVID-19 Case in the workplace, the employer must make COVID-19 testing available during paid time at no cost to employees who had Close Contact with the COVID-19 Case and the employer must provide information regarding COVID-19-related benefits, with the following exceptions:

1. • Employees who were fully vaccinated before the Close Contact and do not have symptoms.
   • Employees who were previously a COVID-19 Case, have satisfied the criteria for returning to work, and have remained symptom free for 90 days after initial onset of symptoms or after the first positive test if the person never developed symptoms.

 

1. Outbreaks – The Revised ETS changes the definitions and contains modified and simplified requirements for “outbreaks” and “major outbreaks,” but also adds filtration requirements. 

• Regular Outbreak – 3 or more employee COVID-19 Cases in an exposed group visited the workplace during their high-risk exposure period at any time during a 14-day period.
• Major Outbreaks – 20 or more employee COVID-19 Cases in an exposed group visited the workplace during their high-risk exposure period at any time during a 30-day period.

 

1. Notice – Employers are still required to provide written notice of a COVID-19 Case in the workplace within 1 day of when the employer knew or should have known of a COVID-19 Case to all employees and others at the worksite during the high-risk exposure period.  Additionally, employers must provide verbal notice as soon as practicable, in a language understandable by the employee, if they reasonably know that an employee has not received the notice, or has limited literacy in the language in which the notice was provided. 

• Method of Providing Notice – Notice may be given via personal service, email or text message if it can reasonably be anticipated to be received by the employee within 1 business day of being sent.

 

1. COVID-19 Prevention Program – Employers are still required to maintain a written CPP, but there are some changes to the required contents.  Every CPP should be updated to ensure its content is consistent with the new requirements of the Revised ETS, including the following:

• Ventilation – Employers must review the California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments to determine the applicable requirements for ventilation that must be implemented and identified in the CPP.
• Training – COVID-19 prevention training must now include additional topics, including the conditions under which face coverings must be worn at the workplace, how the vaccine is effective at preventing COVID-19 and protecting against both transmission and serious illness or death, as well as information regarding the employer’s policies of providing respirators, the rights of unvaccinated employees to request and use respirators and how to use respirators,

 

1. Housing and Transportation – Specific COVID-19 prevention measures and exemption measures that were required under the original ETS for employer-provided housing and employer-provided transportation no longer apply if all occupants are fully vaccinated.

 

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:

 

• Cal/OSHA’s June 17, 2021 News Release regarding the Revised ETS
• Cal/OSHA’s COVID-19 Prevention ETS Website, which includes updated and very helpful FAQs, an updated Fact Sheetand other resources. We expect Cal/OSHA to further update the resources to assist employers in complying with the Revised ETS

 

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:

 

1. Review the Revised ETS
2. Revise your CPP, provide the updated CPP to your employees, complete the necessary training, and retain documentation regarding all of the foregoing
3. Revise your template notices to account for new exemptions
4. Determine whether you need to acquire respirators for any employees
5. Review the EEOC’s Guidance

 

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.