The Cal/OSHA Board convened a special meeting on June 9, 2021, at which they voted 7-0 to withdraw the revised Emergency Temporary Standards (ETS); these standards were scheduled to go into effect on June 15, 2021. The Board will reconvene on June 17, 2021, to vote on a new proposal, which is expected to go into effect on June 28, 2021.
The new standard is expected to align with the Centers for Disease Control and Prevention’s (CDC) guidance and new California Department of Public Health (CDPH) Guidance for the Use of Face Coverings that was issued on June 9, 2021, effective June 15, 2021. (Note: the CDPH guidance does not create standards for employers; that role is still with Cal/OSHA.) Cal/OSHA is now set to vote on adopting a revised ETS proposal at its June 17, 2021, meeting, with the revised proposal expected to be released in the next few days. The effect of the withdrawal of the June 3, 2021, ETS is that employers will need to continue to follow the rules under the original November 2020 ETS until the new proposal goes into effect on the expected June 28, 2021, date. Relatedly, the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) on June 10, 2021, issued its own healthcare Emergency Temporary Standard that sets workplace safety rules for employers in the healthcare sectors.
All California employers should continue to closely follow these ever-changing developments as they navigate their return-to-work plans and protocols. Employers should consult with counsel prior to finalizing their plans.
On May 28, 2021, California’s Division of Occupational Safety and Health (Cal/OSHA) published a revised proposed COVID-19 Emergency Temporary Standards (ETS). The proposed regulations contain notable changes from the original ETS adopted on November 19, 2020, which we covered here.
On June 3, 2021, the Cal/OSHA board voted 4-3 against the proposed ETS. Then, moments later, the seven-person board voted unanimously to adopt the revised regulations. The board now plans to put together a three-person subcommittee to further refine the standard. The regulations are expected to go into effect on June 15, 2021, and will apply to most employers in California. Therefore, employers will want to thoroughly review these rules and apply them to their workplaces.
Many elements of the existing ETS remain in place:
Employees who are fully vaccinated are still required to wear face coverings indoors in the company of those who are not fully vaccinated.
Employers are still required to have a written COVID-19 prevention program. They will need to continue to identify and evaluate COVID-19 hazards; implement a process for screening employees; conduct workplace-specific identification of areas, activities, processes that can potentially expose employees to COVID-19 hazards; and implement effective policies for correcting unsafe or unhealthy conditions, work practices, policies and procedures.
Employers still need to provide training and instruction to employees, although now employers will need to include information on accessing COVID-19 testing and vaccination.
There are also notable changes from the current requirements:
Employers will not have to enforce physical distancing and face covering requirements as long as all persons in the room are fully vaccinated.
Employers may provide those employees who are not fully vaccinated with respirators for voluntary use so that they do not have to enforce six-feet physical distancing.
The existing notice requirement for employers to notify employees of a close contact with a COVID-19 case are now supplemented to include that employers must inform employees when they should have known of a COVID-19 case (previous requirement was only when the employer knew of a close contact).
Starting July 31, 2021, employers will need to provide respirators for voluntary use to all employees who are not fully vaccinated.
Employers must make COVID-19 testing available at no cost to unvaccinated employees displaying COVID-19 symptoms during the employee’s paid time. Currently, employers are required to offer testing to employees when they have a potential COVID-19 workplace-related exposure.
Of importance, Cal/OSHA is still not fully discarding the requirements for physical distancing and face coverings for fully vaccinated individuals to align with the Centers for Disease Control and Prevention (CDC) and California state guidance. If all persons in a room are not fully vaccinated, employees will still need to wear face coverings.
The proposed revisions will now be submitted to the Office of Administrative Law (OAL). After the proposed ETS is received, the OAL will have 10 calendar days for review before these regulations become effective this month. The revised standards are expected to go into effect no later than June 15 if approved by the OAL.
Below, we address notable requirements from the now-adopted ETS.
Face covering requirements still remain in place. Employers will have to provide and ensure that employees wear face coverings indoors, unless all persons in a room are fully vaccinated and do not have COVID-19 symptoms. Employers must provide face coverings and ensure that they are worn by employees when indoors, when outdoors and less than six feet away from another person, and where required by the California Department of Public Health (CDPH) and local health orders.
The new ETS also provides for the additional following exceptions to the face covering requirements:
When an employee is alone in a room, or when all persons in the room are fully vaccinated and do not have symptoms;
While eating or drinking at the workplace, provided that employees are at least six feet apart and outside air has been maximized to the extent possible (if indoors);
Employees wearing respirators required by the employer;
Employees who cannot wear face coverings due to a medical condition or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person;
During the performance of specific tasks which cannot be performed with a face covering, but only for the duration of that task; and
Employees who are fully vaccinated, when they are outdoors and do not have symptoms.
Physical distancing requirements will stay in place until July 31, 2021, regardless of an employee’s vaccination status. Until July 31, 2021, employers must comply with either of the two options identified below for all employees who work indoors or at an outdoor mega event:
All employees must be separated from other persons by at least six feet, except for (1) employees wearing respirators required by the employer and used in compliance with section 5144; (2) where an employer can show that six feet of separation is not feasible; and (3) momentary exposure while persons are in movement.
All employees who are not fully vaccinated must be provided respirators for voluntary use in compliance with section 5144(c)(2).
In effect, employers can eliminate physical distancing and partitions/barriers for employees working indoors and at outdoor mega events if they provide respirators to unvaccinated employees for their voluntary use. After July 31, however, physical distancing and barriers will no longer be required (except during an outbreak), but employers will be required to provide all unvaccinated employees with respirators for voluntary use (see below).
CONTROLS, PERSONAL PROTECTIVE EQUIPMENT AND TESTING
The new ETS also provides for rules about engineering controls, administrative controls and personal protective equipment:
Until July 31, 2021, for all employees working indoors or outdoors at a mega event, if the employer is not providing employees who are not fully vaccinated with respirators for voluntary use, at their work stations where the employee is assigned to work for an extended period (such as cash registers, desks and production line stations) and where physical distancing cannot be maintained at all times, the employer must install a cleanable solid partition that reduces the transmission between the employee and other persons. While requirements for partitions have been in place, this requirement will go away on July 31, 2021.
Beginning July 31, 2021, employers must provide respirators for voluntary use to all employees who are working indoors or at an outdoor mega event who are not fully vaccinated. This is a new requirement which employers are required to abide by.
Employers must continue to implement cleaning and disinfection protocols as specified and must evaluate their handwashing facilities to determine if they need more. Employers must also encourage and allow time for handwashing and provide employees with effective hand sanitizers. As a new requirement, employers must also make COVID-19 testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated, during the employee’s paid time. Employers are not required to provide testing if the employee who had a close contact was fully vaccinated or was previously infected within the prior 90 days.
IDENTIFYING AND EVALUATING COVID-19 HAZARDS
Employers are still required to implement a process for screening employees for and responding to employees with COVID-19 symptoms (such as by asking employees to evaluate their symptoms before reporting to work or through workplace screenings). Employers must also develop COVID-19 policies and procedures to respond to individuals at the workplace who are a COVID-19 case. In addition, employers are required to conduct workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards; employers must also treat all persons as potentially infectious (regardless of their symptoms or negative results).
Employers with indoor worksites are also required to maximize ventilation with outdoor air and evaluate whether the use of certain filtration or air cleaning systems would reduce the risk of COVID-19 transmission.
At the same time, employers are required to (1) review applicable orders and guidance from the state and local health departments about COVID-19 hazards and information specific to the employer’s industry, location and operations; (2) evaluate whether their existing COVID-19 prevention controls require an update; and (3) conduct periodic inspections to identify unhealthy conditions, workplace practices and workplace procedures related to COVID-19, and ensure compliance with the COVID-19 policies.
INVESTIGATING AND RESPONDING TO COVID-19 CASES IN THE WORKPLACE
Employers are still required to have a procedure in place for investigating COVID-19 cases. Employers must also have procedures for gathering information from employees about COVID-19 cases and close contacts, test results, the onset of symptoms and identifying and recording COVID-19 cases.
When there is a COVID-19 case in the workplace, employers are required to:
Determine the day and time the COVID-19 case was last present, and to the extent feasible, the date of the COVID-19 test/diagnosis, and the date the COVID-19 case first had symptoms (if any).
Determine who had a close contact and follow exclusion requirements for employees after a close contact (see below).
Give written notice to employees that people at the workplace may have been exposed to COVID-19 within one business day of the time the employer knewor should have known of the COVID-19 case (without revealing personal information). Under the previous ETS, employers were only required to give notice if they knew of a COVID-19 case. The notice must include certain specific information.
Provide notice as required by Labor Code 6409.6(a)(2) and (c) to the authorized representative of any employee at the worksite during the high risk exposure within one business day of the time the employer knew or should have known of the COVID-19 case.
Make COVID-19 testing available at no cost, during paid time, to all employees who had a close contact in the workplace and provide them information on benefits. However, this requirement does not apply to the following:
Those who were fully vaccinated before the close contact and who do not have COVID-19 symptoms, and
Those with COVID-19 cases who returned to work and are free from symptoms for 90 days after the initial onset of symptoms (or with cases for those who never developed symptoms for 90 days after the first positive test).
Keep records confidential. For personal identifying information of COVID-19 cases or persons with symptoms, and any other records required by the draft rule, the records must be kept confidential unless disclosure is required by law. The ETS defines the term “fully –vaccinated” to mean that the employer has documentation establishing that the person received their full dose of a vaccine at least 14 days prior. The ETS does not however state what kind of documentation is required.
EXCLUDING COVID-19 CASES AND EMPLOYEES WITH CLOSE CONTACTS
Cal/OSHA has also updated the ETS to reflect that fully-vaccinated employees and those individuals who have had COVID-19 in the past 90 days do not need to be excluded from the workplace if they are asymptomatic.
Employers must exclude (1) COVID-19 cases from the workplace until the return-to-work criteria is met (see below), and (2) those who had a close contact until they meet the return-to-work criteria (see below). The exceptions to the exclusion rule are those employees who were fully vaccinated before the close contact and who do not develop symptoms, and those who have recovered from COVID-19 in the last 90 days.
Employees who are excluded must continue to maintain their wages, earnings, seniority and all other employee rights and benefits, as if they had not been removed. This does not, however, apply when the close contact is not work-related, or where the employee receives disability payments, was covered by worker’s compensation or received temporary disability.
The return-to-work is broken down by employees with COVID-19 who are symptomatic and asymptomatic:
Symptomatic COVID-19 cases: These employees must not return to work until (1) 24 hours pass since a fever of 100.4 degrees or higher is resolved without the use of fever reducing medication; (2) COVID-19 symptoms have improved; and (3) at least 10 days have passed since the first COVID-19 symptoms appeared.
Asymptomatic COVID-19 cases: These employees must not return to work until at least 10 days pass since the date of the first COVID-19 test.
After the COVID-19 case meets the criteria above, a negative COVID-19 test is not required for an employee to return to work.
Those employees who have a close contact can return to work under the following conditions:
Employees with a close contact who do not develop symptoms can return to work when 10 days have passed since the last known close contact.
Those who had a close contact and developed any COVID-19 symptoms cannot return to work until the requirements identified above for those with symptoms are met, unless:
The person tested negative for COVID-19 using a PCR test with the testing done after the onset of symptoms;
At least 10 days have passed since the last known close contact; or
The person has been symptom-free for at least 24 hours, without using fever-reducing medication.
If there are staffing shortages, when there aren’t enough staff to provide patient care, essential critical infrastructure workers in certain specified categories can return after Day 7 from the date of last exposure (if they receive a negative test after Day 5).
The new ETS still requires employers to maintain a written COVID-19 prevention program; to have a system in place for communicating with employees about COVID-19 exposure, symptoms and hazards, etc.; and to continue to provide training and instruction, although employers now need to include information about accessing testing and vaccination and proper use of respirators as part of the training program. Likewise, employers are still required to report information about COVID-19 cases and outbreaks and maintain records about steps taken to implement their COVID-19 prevention program.
We are here to help. Our McDermott Will & Emery employment team of lawyers are tracking the latest state and local developments and are here to assist you with practical and protective guidance for navigating these complex workplace and business issues.