UPDATE: Cal/OSHA Withdraws June 3, 2021 revised ETS. In a special meeting held on the evening of June 9, 2021, the Cal/OSHA Board met to consider the latest guidance from the Centers for Disease Control and California Department of Public Health regarding masking. The Board voted unanimously to withdraw the revisions to Cal/OSHA’s revised ETS that they had voted to approve on June 3, 2021, and that were set to go into effect on June 15, 2021 (pending approval from the Office of Administrative Law). In a press release, Cal/OSHA stated that it will review the new mask guidance, bring any recommended revisions to the Board and that the Board could consider new revisions at a future meeting, perhaps as early as the regular meeting on June 17, 2021. In the meantime, the Cal/OSHA’s ETS adopted in November of 2020 will continue to remain in effect. Faegre Drinker will continue to monitor and provide insights with respect to Cal/OSHA’s revised ETS as well as other COVID-19-related topics. Insights will be updated on the firm’s COVID-19 Resource Center.
On June 3, 2021, the California Occupational Safety & Health Standards (Cal/OSHA) Board voted to adopt revisions to its COVID-19 prevention emergency temporary standards (ETS). The Board also voted to create a three-person subcommittee that will work with Cal/OSHA on a proposal for a future revised ETS.
The revised ETS (which will make changes to California Labor Code Sections 3205 through 3205.4) do not fully align with, and fall short of following, the latest guidance by the Centers for Disease Control and Prevention (CDC). If approved by the Office of Administrative Law (which is expected), the revised ETS will take effect no later than June 15, 2021. As discussed below, some provisions go into effect on or after July 31, 2021.
Below is a summary of the notable revisions:
- “Face Coverings”: A single layered face covering, such as a scarf, ski mask, balaclava, bandana, turtleneck, or collar, does not qualify. What qualifies: a surgical mask, a medical procedure mask, a respirator or masks with at least two layers of fabric. Employers are required to provide face coverings and ensure they are worn by employees over the nose and mouth. Under the revised ETS:
- When indoors, fully vaccinated employees without COVID-19 symptoms do not need to wear face coverings in a room where everyone else is fully vaccinated and not showing COVID-19 symptoms. Employees will still need to continue to wear masks indoors regardless of vaccination status in rooms where not all persons are fully vaccinated.
- When outdoors, fully vaccinated employees without symptoms do not need to wear face coverings. However, outdoor employees who are not fully vaccinated must continue to wear a face covering when they are less than six feet away from another person.
- Employees exempted from wearing face coverings due to a medical condition, mental health condition, or disability shall wear an effective non-restrictive alternative, such as a face shield with a drape on the bottom, if their condition or disability permits it. Further, any employees that are not required to wear face coverings because they qualify for an exemption must be physically distanced unless the unmasked employee is fully vaccinated or tested weekly for COVID-19 during paid time at no cost to the employee.
- “Fully vaccinated”: The revised ETS provide that “fully vaccinated” means that the employer has documentation that it has been at least two weeks since the employee received the second dose in a two-dose series, or the first dose in a single-dose vaccine series, of a vaccine approved by the Federal Drug Administration (FDA), Vaccines must be FDA approved or have an emergency use authorization from the FDA.
- “Physical Distancing”: The revised ETS continue to require some form of physical distancing for all employees working indoors or at outdoor mega events.
- Until July 31, 2021, employers must comply with one of two physical distancing options for all employees working indoors or at outdoor mega events. First, all employees must be separated by at least six feet unless: (1) employees are wearing compliant respirators as required by the employer; (2) where an employer can demonstrate that six feet of distance is not feasible; and (3) there is only momentary exposure during movement. Second, all employees that are not fully vaccinated must be provided respirators for voluntary use.
- After July 31, 2021, employers will not be required to follow the first option above, eliminating the physical distancing requirement unless there is an outbreak or major outbreak; however, employers are required to provide all employees that are not fully vaccinated with respirators starting July 31, 2021.
- Prevention Program: Employers are still required to maintain a written COVID-19 Prevention Program, which may be integrated into the employer’s Injury and Illness Prevention Program required by Labor Code Section 3203, or be maintained in a separate document. But there are some key changes to the requirements, including: employers must (1) for indoor spaces, evaluate and determine how to maximize ventilation with outdoor air, the highest level of filtration efficiency that is compatible with the existing ventilation system, and whether the use of portable or mounted HEPA filtration units, or other air cleaning systems, will reduce the risk of COVID-19; (2) review the Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments published by California Department of Public Health; (3) as part of COVID-19 prevention training, employers must include information on the benefits and effectiveness of the COVID-19 vaccine at preventing COVID-19 and protecting against both transmission and serious illness or death; and (4) provide information to employees on how to obtain COVID-19 testing or a COVID-19 vaccine.
- Administrative Controls and Personal Protective Equipment: Until July 31, 2021, employers that choose to physically distance employees instead of providing respirators to unvaccinated employees, must also keep up cleanable solid partitions at workstations that effectively reduce transmission between the employee and other persons. And, as described above, starting July 31, 2021, employers are required to provide respirators for all employees that are not fully vaccinated for their voluntary use. In the event of multiple infections or outbreaks, however, an employer must continue to maintain partitions and physical distancing.
- A COVID-19 case at the place of employment. The employer must continue to make COVID-19 testing available at no cost, during paid time, to all employees who had a close contact except for: (1) employees who were fully vaccinated before the close contact and do not have COVID-19 symptoms; and (2) employees who have recovered from COVID-19 and returned to work, and have remained free of COVID-19 symptoms, for 90 days after the initial onset of COVID-19 symptoms or, for COVID-19 cases who never developed symptoms, for 90 days after the first positive test. The revised ETS have additional requirements for testing during multiple COVID-19 infections and outbreaks.
- Testing of symptomatic employees. Employers must make COVID-19 testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated, during employees’ paid time.
- Exclusions from the Workplace: Employers no longer have to exclude employees that are fully vaccinated or employees who have recovered from COVID-19 and returned to work, and have remained free of COVID-19 symptoms, for 90 days after the initial onset of COVID-19 symptoms or, for COVID-19 cases who never developed symptoms, for 90 days after the first positive test from the workplace after close contact with a person with COVID-19 as long as they do not have symptoms.
Finally, the revised ETS include changes to requirements for:
- Multiple COVID-19 Infections and Outbreaks (§ 3205.1), defined as three or more employee COVID-19 cases within an exposed group at the workplace during their high-risk exposure period at any time during a 14-day period;
- Major Outbreaks (§ 3205.2), defined as 20 or more employee COVID-19 cases in an exposed group at the workplace during their high-risk exposure period within a 30-day period;
- Employer-Provided Housing (§ 3205.3); and
- Employer-Provided Transportation (§ 3205.4).
It is anticipated that Cal/OSHA will revise and update its COVID-19 Emergency Temporary Standards Frequently Asked Questions webpage to account for the revised ETS and provide additional clarifications. Employers should review the revised ETS to ensure compliance as it is expected that the Office of Administrative Law will approve these revised regulations.
Faegre Drinker will continue to monitor and provide insights with respect to Cal/OSHA’s revised ETS as well as other COVID-19-related topics. Insights will be updated on the firm’s COVID-19 Resource Center.
 Some provisions in the revised ETS provide that they are in effect until July 31, 2021, some go into effect on July 31, 2021, and others go into effect after July 31, 2021. We anticipate that Cal/OSHA will provide additional clarifications in the coming days.
 “Respirator” means a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.