At a Standards Board meeting on June 3, 2021, the California Division of Occupational Safety and Health (Cal/OSHA) “readopted” its COVID-19 Prevention Emergency Temporary Standards with revisions as published on May 28. Most notably, these revisions do not match with the Centers for Disease Control and Prevention and federal Occupational Safety and Health Administration guidance stating that fully vaccinated individuals are exempt from face-covering requirements in most indoor and outdoor settings. The California Office of Administrative Law will have 10 days to review the language, and these revisions should then take effect on or around June 15, 2021.
The Standards Board was divided over whether to adopt these amendments, mostly due to concerns over requirements that employers provide unvaccinated employees with “respirators” (N95 masks) starting July 31, 2021. The initial motion to readopt the Emergency Temporary Standards (ETS) failed for lack of votes in favor. However, after additional discussion and a short break, the Standards Board returned and voted to adopt the updated ETS, but also discussed possibly revising the language as soon as its next meeting, which is currently scheduled for June 17, 2021. The below highlights the most important revisions with which employers with worksites in California should be prepared to comply.
The revisions clarify that the ETS do not apply to employees working remotely.
The prior ETS confusingly used the term “COVID-19 exposure” to describe what had commonly become known as a “close contact.” These revisions adopted the “close contact” terminology. Additionally, the revisions add an exception to the definition of “close contact” for those wearing a respirator.
To treat an employee as “fully vaccinated,” the employer must have “documentation” showing that the person received a full dose of a COVID-19 vaccine authorized by the U.S. Food and Drug Administration (FDA) at least 14 days prior. Cal/OSHA likely will clarify the meaning of “documentation” in FAQs to be published soon.
Under the prior ETS, there was much confusion among employers as to whether the notice requirements regarding a COVID-19 case in the workplace were different from the requirements already codified under California Labor Code Section 6409.6 (also known as AB 685). The readopted ETS clarify that the notice requirements are essentially the same as those under AB 685. Notice must be provided within one business day to all employees, independent contractors, exclusive representatives of the employees, and other employers at the worksite.
“Worksite” is defined as a building, store, agricultural field, or other location at which a COVID-19 case was present during the “high-risk exposure period.” The term “worksite” does not apply to other buildings, floors, or other locations of the employer that the person experiencing COVID-19 symptoms did not enter.
The readopted ETS change the physical distancing requirements from a “possibility” standard (whether it is possible to maintain six feet of distance) to a “feasibility” standard. It provides employers with two options to comply:
These physical distancing provisions apply until July 31, 2021, or until new respirator requirements take effect, as discussed below.
The readopted ETS further narrow the definition of a “face covering” to surgical masks, medical procedure masks, respirators worn voluntarily, or tightly woven fabric masks with at least two layers. Employees are free to wear face coverings even when not required, unless it presents a safety hazard. Employees who cannot wear face coverings due to one of the limited exceptions must physically distance around unmasked employees unless the unmasked employees are fully vaccinated or tested weekly (at the employer’s cost).
The readopted ETS also add two exceptions (in addition to the prior exceptions) to the face-covering requirement for fully vaccinated employees:
As discussed previously, these face-covering requirements are narrower than the Centers for Disease Control and Prevention’s (CDC’s) recently issued face-covering guidance with which the federal Occupational Safety and Health Administration (OSHA) and the California Department of Public Health (CDPH) aligned. It is unclear whether Cal/OSHA intends to revise these requirements at any point in the future to match with the CDC’s more permissive guidance.
An “outdoor mega event” is defined as a gathering that includes more than 10,000 participants or spectators outdoors. Employers hosting such an event must adhere to physical distancing and engineering control requirements for all attendees regardless of vaccination status, but only until July 31, 2021.
The prior ETS were somewhat vague as to the ventilation requirements for employers’ buildings. The readopted ETS clarify that employers must upgrade their ventilation systems to the highest filtration efficiency level compatible with the existing systems. It also adds that employers should consider installing portable or mounted HEPA filtration units.
Additionally, employers are no longer required to install solid partitions at stationary workstations where physical distance cannot be maintained if the employers maximize the quantity of outside air in the workplace, except where the Environmental Protection Agency’s (EPA’s) Air Quality Index is greater than 100 for any pollutant or where maximizing outdoor air would cause a hazard to employees (for instance, from excessive heat or cold). The requirement to install solid partitions ends completely on July 31, 2021.
By July 31, 2021, employers must provide “respirators”—i.e., N95 masks—to all employees working indoors who are not fully vaccinated. However, employees who are not fully vaccinated are not required to wear these respirators; they can wear any form of face covering that meets Cal/OSHA’s definition. Employers also must train employees who are not fully vaccinated on how to wear respirators, how to perform a seal check of the respirators, and that facial hair can interfere with the seal.
The readopted ETS add two exceptions to the rule that employers must provide testing to those exposed to COVID-19 in relation to their employment. Neither fully vaccinated employees nor employees who had COVID-19 within the last 90 days must be tested even if they are in “close contact” with a COVID-19 case.
In addition, starting on July 31, 2021, employers must make COVID-19 testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated. Notably, this requirement is not limited to those employees whose COVID-19 exposure is work related. COVID-19 symptoms alone trigger this obligation.
In addition to the respirator training requirements discussed above, the readopted ETS require training on the following:
The readopted ETS only require employers to clean frequently touched surfaces; there is no requirement to disinfect those surfaces. Furthermore, when there is a COVID-19 case in the workplace, cleaning of areas, materials, and equipment that the person who tested positive used remains required. Disinfection is now required only if another employee will use the same indoor area, material, or equipment within 24 hours of the person who tested positive for COVID-19.
The readopted ETS entirely remove the provisions prohibiting the sharing of personal protective equipment (PPE) and the required disinfection of shared equipment between uses.
The readopted ETS exempt the following from close contact exclusion requirements: (1) fully vaccinated employees who are asymptomatic, and (2) employees who had COVID-19 within the last 90 days and are asymptomatic.
In addition, the readopted ETS also update the close contact exclusion period to match the CDPH guidance. An unvaccinated employee who had a close contact but never developed symptoms may return 10 days after the last known contact.
The readopted ETS clarify that an employee who is entitled to COVID-19 leave pay must be paid at the employee’s regular rate of pay no later than the regular payday for the pay period in which the employee was excluded from work. Furthermore, the employer must inform the employee if exclusion pay will be denied due to an applicable exception and identify for the employee the exception that applies.
Also, the revisions clarify that disability payments and workers’ compensation can be used to maintain the employee’s pay, and the employer is only responsible for covering the difference.
The readopted ETS make several changes to the required outbreak and major outbreak provisions. First, an “exposed group” definition replaces the prior “exposed workplace” terminology for outbreak case-counting purposes. The “exposed group” means all persons at a work location, working area, or common area at work where a COVID-19 case was present at any time during the high-risk exposure period. A common area includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.
The required testing during a COVID-19 outbreak should be made available to employees within the exposed group, with three exceptions:
Furthermore, employees in the exposed group who are not wearing respirators must maintain six feet of distance from all individuals if feasible, and the employer should install solid partitions at fixed workstations where six feet of distance cannot be maintained.
In the prior ETS, employers were only required to upgrade their ventilation systems to MERV 13 during a major outbreak. Employers now must also upgrade the ventilation systems during a standard outbreak (three or more cases during a 14-day period).
Lastly, if an outbreak occurs before July 31, 2021, an employer must provide all employees who are not fully vaccinated with respirators for voluntary use. This provision effectively accelerates the new respirator requirements in the event of an outbreak.
The prior ETS provisions on employer-provided transportation only applied to transportation to and from work. The readopted ETS expand the scope to include all employer-provided transportation. In addition, employers must provide respirators to employees who are not fully vaccinated and who share a vehicle with “at least one other person” for 15 minutes or more within 15 days after the readopted ETS become effective.
The readopted ETS present challenges for employers that were hoping to enact uniform national COVID-19 policies based on the CDC face mask guidance. While the Standards Board announced plans to form a subcommittee to further review the ETS language, effective June 15 employers operating both inside and outside California must either update their national policies to comply with Cal/OSHA’s more stringent requirements or adopt different policies for employees working at worksites within California—subject to potential further changes in the readopted ETS that the Standards Board could consider as soon as June 17.
Sharing insights and resources that help our clients prepare for and address evolving issues is a hallmark of Morgan Lewis. To that end, we maintain a resource center with access to tools and perspectives on timely topics driven by current events such as the global public health crisis, economic uncertainty, and geopolitical dynamics. Find resources on how to cope with the globe’s ever-changing business, social, and political landscape at Navigating the NEXT and Coronavirus COVID-19 to stay up to date on developments as they unfold. Subscribe now if you would like to receive a digest of latest updates to these resources.
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