Cal/OSHA Board Delays Proposed ‘Readoption’ of COVID-19 Emergency Temporary Standards

The California Occupational Safety and Health (Cal/OSHA) Standards Board has decided to delay approving Cal/OSHA’s proposed “readoption” of the COVID-19 Prevention Emergency Temporary Standards pending Cal/OSHA’s anticipated further proposed revisions in light of recent mask guidance from the Centers for Disease Control and Prevention.

On May 20, 2021, the board held a comments hearing to discuss Cal/OSHA’s proposed revisions (framed as a “readoption”) to the current COVID-19 Prevention Emergency Temporary Standards (ETS) that have been in place since November 30, 2020. Pursuant to its May 7, 2021 Notice of Proposal of Readoption of Emergency Action, Cal/OSHA proposed multiple revisions to the ETS:

• Exceptions to the physical distancing requirements for (1) employees wearing respirators (such as N95 masks) per an employer requirement, and (2) locations where all employees are fully vaccinated.
• Exceptions to the face covering requirements for (1) fully vaccinated employees who are outdoors and do not have COVID-19 symptoms, and (2) employees in a room when all persons in the room are fully vaccinated and no one has COVID-19 symptoms.
• A requirement that employers must provide respirators for all employees working indoors who are not fully vaccinated by July 31, 2021.
• Exceptions to the rule that employers must provide testing to employees with a work-related exposure for (1) fully vaccinated employees and (2) employees who had COVID-19 within the last 90 days.
• A requirement that employers must make COVID-19 testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated, regardless of whether there was a work-related exposure.
• New training requirements, including training on respirators.
• Exceptions to the exclusion requirements for (1) asymptomatic close contacts who are fully vaccinated, and (2) employees who had COVID-19 within the last 90 days.

However, after Cal/OSHA provided this notice, on May 13 the Centers for Disease Control and Prevention (CDC) issued new guidance, which, among other things, permits fully vaccinated people to be unmasked in almost any setting. While Cal/OSHA’s proposed revisions made some concessions for vaccines (for example, permitting fully vaccinated employees to be in the same room together unmasked), the revisions did not go nearly as far as the CDC’s guidance or the California Department of Health and Human Services’ (DHHS’s) May 17 announcement that California would align its face mask guidance with the CDC’s guidance as of June 15, 2021.

This apparent conflict placed Cal/OSHA in the position of proceeding before the board with a revised ETS that would be outdated even before taking effect (the expected effective date being May 30, 2021). Cal/OSHA did not address this conflict until the eve of the board’s comments hearing, when Cal/OSHA sent a memorandum to the board requesting that the board “not vote to approve” the revised ETS so that Cal/OSHA could “revisit” portions of the ETS in light of CDC’s new guidance. Cal/OSHA represented that it would “limit any potential changes” to application of the CDC’s new guidance, with the goal of having a further revised ETS in place by June 15, 2021 (corresponding to the state DHHS’s announcement that the state would align its face mask guidance with the CDC’s guidance effective that same date).

The May 20, 2021 public meeting proceeded as planned, with the board initially acknowledging Cal/OSHA’s request for delay. Following the meeting, the board voted unanimously to delay any action pending Cal/OSHA’s further revisions to the ETS. However, a few members of the board expressed concern that the CDC face mask guidance was issued prematurely. As such, the current version of the ETS, which is in effect through October 2, 2021, will remain in place until, most likely, June 15, 2021.

Employers should continue to follow all of the current ETS requirements in the absence of executive action or express guidance from Cal/OSHA. The board plans to conduct an emergency public meeting on June 3, 2021 at 10:00 am PT to consider Cal/OSHA’s soon-to-be-updated proposal, and the updated proposed language will be posted publicly by May 28, 2021.

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