In another reversal, on June 9 the California Division of Occupational Safety and Health (Cal/OSHA) Standards Board unanimously voted to withdraw the “Readopted” Emergency Temporary Standards that it had approved just six days earlier, while the California Department of Public Health (DPH) previewed new face mask guidance that aligns with the Centers for Disease Control and Prevention’s (CDC’s) face mask guidance and will take effect June 15. In addition, the health department from Los Angeles County—the county with the largest population and with the highest number of COVID-19 cases and deaths in the state since the pandemic began—announced that it will adopt the state DPH guidance except that employers must adhere to Cal/OSHA standards.
At a June 3 meeting, the Standards Board voted to approve amendments to the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards after rejecting the amendments in an initial vote at that meeting. Those amendments were subject to a 10-day administrative review before they became effective. Six days later, at a June 9 special meeting, the Standards Board voted unanimously to withdraw the amended Emergency Temporary Standards before they took effect after a DPH official gave the Standards Board a presentation on the DPH’s new guidance for face coverings that will take effect June 15.
The Standards Board then requested that Cal/OSHA draft new revisions to the Emergency Temporary Standards for the Standards Board to consider, possibly as soon as its next scheduled meeting on June 17. If approved on June 17, the new language will take effect by June 28.
While it appears the new language will seek to align Cal/OSHA’s face covering requirements with those of the DPH and thus the CDC, and likely will reinsert many of the amendments approved on June 3 such as those relating to providing respirators and mandatory COVID-19 testing, it is unclear at this time what the new language will be.
In the interim, the COVID-19 Prevention Emergency Temporary Standards adopted on November 30, 2020, remain in effect. Employers in California are subject to those standards until further notice. The November 30 standards do not distinguish fully vaccinated employees from unvaccinated employees for any purpose.
Meanwhile, also on June 9, the DPH unveiled the new state guidance for face coverings that aligns with the CDC's guidance for fully vaccinated individuals. The DPH had announced on May 17 that it would align its face mask guidance with the CDC’s guidance as of June 15. That guidance, unlike the Cal/OSHA standards, does not require fully vaccinated persons to wear face masks in most indoor and outdoor settings.
Following the DPH, Los Angeles County’s health department announced on June 9 that it will issue an updated health officer order on June 15 that will align with the state’s June 15 masking guidelines. However, at a press briefing the next day, the county’s director of public health indicated that the forthcoming updated health officer order will require employers in the county to follow Cal/OSHA’s Emergency Temporary Standards.
Cal/OSHA’s inconsistent positions have presented challenges for employers in California attempting to return employees to in-person workplaces. For example, starting June 15 businesses with customers will grapple with a more permissive face mask standard for fully vaccinated customers (DPH) and a different, more restrictive standard for fully vaccinated employees (Cal/OSHA).
While it appears that Cal/OSHA finally is on track to align its face mask and distancing guidance with the CDC and with the other governing bodies in California by late June, employers should continue to monitor developments and consult with counsel for the latest updates and guidance.
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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
Kate McGuigan
Jason Mills
Orange County
John Hayashi
Daryl Landy