CAL/OSHA ‘Readopts’ Standards That Now Account for Fully Vaccinated Employees in the Workplace

The Cal/OSHA Standards Board voted on June 17 to “readopt” the COVID-19 Prevention Emergency Temporary Standards (ETS) with several revisions that brought the ETS rules for fully vaccinated employees more in line with the Centers for Disease Control and Prevention (CDC) and California Department of Public Health’s (CDPH) guidance. Later that day, Governor Gavin Newsom issued Executive Order N-09-21 that eliminated 10 days of administrative review so that the ETS could take effect immediately.

As a result, California businesses subject to the CDPH guidance and employers subject to the ETS finally are governed by similar COVID-19 prevention rules. Employers in California should update their written COVID-19 Prevention Program as soon as possible to comply with the new version of the ETS. Below are notable changes as well as a partial list of provisions that have remained unchanged from the original ETS adopted November 30, 2020.

WHAT’S NEW?

Ascertainment of Vaccination Status

The ETS defines “fully vaccinated” as: “the employer has documented that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Vaccines must be FDA approved; have an emergency use authorization from the FDA; or, for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO).”

Accordingly, employers must “document” vaccination status for any employee not wearing a face covering indoors, and this record must remain confidential. Cal/OSHA issued FAQs addressing this and other requirements. The FAQs clarify that “has documented” means that employers are not required to obtain proof of vaccination status. The following are examples of acceptable methods to ascertain vaccination status:

1. Employees provide proof of vaccination (vaccine card, image of vaccine card, or healthcare document showing vaccination status) and employer maintains a copy.
2. Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
3. Employees self-attest to vaccination status and employer maintains a record of who self-attests.

Accordingly, employers must decide how they will collect vaccination information if they wish to take advantage of the exceptions to safety protocols for fully vaccinated employees. However, employers can forego this process if they treat fully vaccinated employees and unvaccinated employees alike (e.g., masks required for all employees working indoors).

Face Coverings

Fully vaccinated employees are no longer required to wear a face mask in most indoor and outdoor settings. Employees not fully vaccinated must wear a mask indoors except in the following cases:

1. When alone in a room or vehicle
2. While eating or drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent feasible
3. Employees wearing respirators required by the employer
4. Employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person
5. When specific tasks which cannot feasibly be performed with a face covering. This exception is limited to the period in which such tasks are actually being performed.

Employees exempt from the face covering requirement due to a disability and who are not wearing a nonrestrictive alternative must with limited exception be at least six feet apart from all other persons.

The ETS also further limit the definition of a permissible “face covering” to a surgical mask, a medical procedure mask, a “respirator” (such as an N95) worn voluntarily, or a tightly-woven fabric or non-woven material of at least two layers.

The ETS also forbids employers from preventing an employee from wearing a face covering when it is not required. Also, employers must continue to provide face coverings to employees upon request, regardless of vaccination status.

Respirators

Employers must provide respirators to employees not fully vaccinated for voluntary use upon the employees’ request. A “respirator” is defined as a National Institute for Occupational Safety and Health-approved respiratory protection device (N95, not KN95). Employers must encourage the use of respirators and ensure that employees who request respirators are provided with the correct sized respirators. The ETS also include new training requirements for employees on how to use respirators.

Physical Distancing

Generally, physical distancing is no longer required regardless of vaccination status, unless there is an outbreak.

Engineering Controls

Solid partitions (such as plexiglass) no longer are required unless there is an outbreak.

In addition, the ETS incorporated stricter standards for mechanical ventilation systems at indoor workplaces. The employer must evaluate (1) how to maximize ventilation with outdoor air, (2) the use of the highest level of filtration efficiency compatible with the existing system, and (3) the use of portable or mounted High Efficiency Particulate Air filtration units, or other air cleaning systems, if it would reduce the risk of COVID-19 transmission.

WHAT’S STILL REQUIRED?

Employee Screening

Deviating from CDC guidance and many other states’ updated directives, the ETS continue to require employee screening for COVID-19 symptoms for all employees at the worksite regardless of vaccination status. The employer may ask employees to evaluate their own symptoms before reporting to work (self-screening). If the employer chooses to conduct screening indoors at the workplace, the employer must ensure that both screeners and employees who are not fully vaccinated wear face coverings during screening. Temperature checks are not required. If screeners conduct temperature checks, then they must use non-contact thermometers.

Written COVID-19 Prevention Program

The readopted ETS retain the requirement to prepare a written COVID-19 Prevention Program, and list the exact topics the Program should include. Fortunately, Cal/OSHA has announced it will be updating its helpful template Prevention Program and posting the update online soon.

Cal/OSHA Covid-19 Case Notice and AB 685

Based on the original ETS, there were two separate employee notice requirements under California law following a COVID-19 case in the workplace: (1) notice to all employees, other employers, and authorized representatives in the workplace under AB 685 (aka Labor Code section 6409.6), and (2) notice to all close contacts (employees, independent contractors, other employers, and authorized representatives) under the ETS. However, the updated ETS eliminates the notice requirements to close contacts and adopts the AB 685 notice requirements.

Exclusion of COVID-19 Cases and Close Contacts

Employers must continue to exclude COVID-19 cases and certain close contacts from the workplace. A “close contact” means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the “high-risk exposure period.”

There are two new exceptions to the close contact exclusion requirement:

• Employees who were fully vaccinated before the close contact and who do not develop COVID-19 symptoms; and
• COVID-19 cases who recovered from COVID-19 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 COVID-19 symptoms, for 90 days after the first positive test.

Return-to-Work Criteria

Though the requirements for COVID-19 cases remain the same (COVID-19 cases must be excluded regardless of vaccination status), there are new provisions regarding the return-to-work requirements for close contacts. Unvaccinated employees who had a close contact but never developed any COVID-19 symptoms may return to work when 10 days have passed since the last known close contact.

However, employees who had a close contact and developed any COVID-19 symptoms cannot return to work until all the following are true:

1. At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medications
2. COVID-19 symptoms have improved
3. At least 10 days have passed since COVID-19 symptoms first appeared

The above criteria for symptomatic close contacts do not apply, however, if all the following are true:

1. The person tested negative for COVID-19 using a polymerase chain reaction (PCR) COVID-19 test with specimen taken after the onset of symptoms
2. At least 10 days have passed since the last known close contact
3. The person has been symptom-free for at least 24 hours, without using fever reducing medications

Training and Instruction

The ETS include new training requirements and modify certain previously required topics. The new or revised requirements include the following:

• That particles containing the virus can travel more than six feet, especially indoors
• The employer’s policies for providing respirators, and the right of employees who are not fully vaccinated to request a respirator for voluntary use as stated in this section, without fear of retaliation and at no cost to employees
• Whenever respirators are provided to employees for voluntary use, those employees must be trained (1) how to properly wear the respirator provided; (2) how to perform a seal check according to the manufacturer’s instructions each time a respirator is worn, and (3) the fact that facial hair interferes with a seal
• COVID-19 is an airborne disease. N95s and more protective respirators protect the users from airborne disease while other types of face coverings primarily protect people around the user
• Information on the employer’s COVID-19 policies; how to access COVID-19 testing and vaccination; and that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death
• The conditions under which face coverings must be worn at the workplace, and that face coverings are additionally recommended outdoors for people who are not fully vaccinated if they cannot maintain six feet of distance from others

‘Exposed group’ and Outbreak Case Counting

Previously, the outbreak and major outbreak requirements, and the case-counting method for determining whether such outbreaks exist, applied to an “exposed workplace.” Cal/OSHA changed the terminology to “exposed group,” which is defined as “all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period. A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.” Notably, employers no longer must include nonemployee COVID-19 cases when counting the number of cases for determining whether there is an outbreak.

Also, there are exceptions to the definition of the “exposed group”:

1. For the purpose of determining the exposed group, a place where persons momentarily pass through while everyone is wearing face coverings, without congregating, is not a work location, working area, or a common area at work.
2. If the COVID-19 case was part of a distinct group of employees who are not present at the workplace at the same time as other employees — for instance, a work crew or shift that does not overlap with another work crew or shift — then only employees within that distinct group are part of the exposed group.
3. If the COVID-19 case visited a work location, working area, or a common area at work for less than 15 minutes during the high-risk exposure period, and the COVID-19 case was wearing a face covering during the entire visit, other people at the work location, working area, or common area are not part of the exposed group.

These exceptions reduce the chances that employers will reach the required number of COVID-19 cases for outbreak provisions to apply.

Revised “Outbreak” Requirements

The “outbreak” provisions still apply when there have been three or more employee COVID-19 cases within an exposed group during a 14-day period. If this occurs, the employer must provide weekly testing to all employees in the exposed group, except for the following:

1. Employees who were not present during the relevant 14-day period
2. Employees who were fully vaccinated before the outbreak
3. COVID-19 cases who recovered from COVID-19 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 COVID-19 symptoms, for 90 days after the first positive test

Also, the employer must implement the following policies:

1. Employees in the exposed group, regardless of vaccination status, must wear face coverings when indoors and when outdoors and less than six feet from another.
2. The employer must remind employees not fully vaccinated of their right to request a NIOSH-approved respirator (i.e., N95).
3. Employers must evaluate whether to implement physical distancing where feasible. Where distancing is not feasible, the employer must evaluate whether to install solid partitions.
4. Employers must filter recirculated air with MERV 13 or higher efficiency filters if compatible with the existing system. If MERV 13 or higher efficiency is not compatible, then the employer must use the highest efficiency filter compatible with the system. The employer must also evaluate whether portable or mounted HEPA filtration units or other air cleaning systems would reduce the risk of exposure and, if so, install such units.

Revised ‘Major Outbreak’ Requirements

The “major outbreak” provisions still apply when there have been 20 or more employee COVID-19 cases within an exposed group during a 30-day period. If this occurs, then the employer must provide biweekly testing to all employees in the exposed group regardless of vaccination status.

In addition to the regular outbreak requirements, the employer must implement the following:

1. The employer must provide NIOSH-approved respirators for voluntary use to all employees in the exposed group, and they must consider instituting a “respiratory protection program” (requiring employees to wear respirators) as codified in the California Code of Regulations.
2. Any employees in the exposed group not wearing a respirator must maintain physical distancing where feasible. The employer must install solid partitions where distancing is not feasible.
3. The employer must evaluate whether to halt some or all of its operations.

Employer-Provided Transportation

The good news for employers is that physical distancing no longer is required in employer-provided transportation. However, the prior ETS provisions on employer-provided transportation only applied to transportation to and from work. The bad news for employers is that the readopted ETS have expanded to include all employer-provided transportation. Employers not previously covered should become familiar with the ETS’ detailed requirements related to employer-provided transportation and should include applicable provisions in an updated COVID-19 Prevention Plan.

CONCLUSION

Cal/OSHA’s frequent course changes on the updated ETS have presented challenges for employers attempting to plan and develop policies for reopening workplaces. With the Standards Board’s June 17 “readoption” of the ETS that include provisions aligning with the CDC and CDPH on face covering and quarantine requirements, employers in California can implement protocols to return employees to a semi-normal workplace. Employers should revise their COVID-19 Prevention Plans. Employers also should be mindful of the many other provisions in the readopted ETS that did not change, and of the possibility that Cal/OSHA will further revise the standards in the future.

RETURN TO WORK RESOURCES

We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.

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CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Los Angeles
Kathryn T. McGuigan
Jason S. Mills

Orange County/Silicon Valley
Daryl S. Landy