Cal/OSHA standards board passes revised COVID-19 emergency temporary standards

On the evening of June 3, 2021, following a lengthy and contentious public hearing, the Cal/OSHA Standards Board unanimously passed a revised COVID-19 Emergency Temporary Standard (ETS). The vote was surprisingly dramatic, as it came only after the Board first rejected the revised ETS by a 4-3 vote.

Because the initial "no" vote meant the existing ETS—which was far more restrictive and first took effect in November 2020, before vaccines were prevalent—would remain in place, the Board reconsidered its earlier vote after a recess. The Board also agreed to direct a subcommittee of three members to meet with the Division of Occupational Safety & Health to discuss further revisions to the ETS.

The final vote came on the heels of a delayed vote on these standards—originally scheduled for May 20, 2021—through which the Board noted that it would allow new proposals to be submitted to more closely align with updated guidance from the CDC and state agencies. These approved revisions to the ETS, however, prove far more onerous than the newest guidance from the CDC. While the revised ETS still has to be approved by the Office of Administrative Law, approval is likely. We anticipate the new ETS will go into effect on or about June 15, 2021.

Subject to clarification in FAQs which the Division indicated would be developed, below are the key takeaways from the amended ETS of which California employers should be aware:

Physical distancing

The requirement that all employees maintain six feet of physical distance when working indoors or outside at events with more than 10,000 people (so-called "mega events") will remain in place until July 31, 2021. Employers are excused from this requirement if they provide N95 or other respirators for voluntary use to unvaccinated employees. At the hearing, the Division clarified that it is "voluntary" for the employee to wear, or not to wear, the respirator under these circumstances. They may choose to wear a surgical mask or other non-respirator face covering. It is not "voluntary," however, for the employer to provide respirators to those who want them. The employees do not need to be fit tested for the respirators.

Face coverings

Employers are still required to provide face coverings and ensure face coverings are worn when employees are indoors, when employees are outdoors and less than six feet away from others and where required by order from the California Department of Public Health. This mandate does not apply (a) when an employee is alone in a room or when all persons in a room are fully vaccinated, (b) an employee is wearing a respirator, or (c) a fully vaccinated employee is outdoors and does not have any COVID-19 symptoms.

Respirators for unvaccinated employees

Employers must provide filtering facepiece respirators (e.g., N95 masks) to employees that are unvaccinated. Employers must develop written procedures for use of those respirators to ensure proper use and avoid potential hazards associated with their use.

Partitions

Partitions must be used indoors and at outdoor mega-events until July 31, 2021, at which time they may be removed. Should multiple COVID-19 infections or an outbreak occur in the workplace, the partitions must be reinstalled. Employers may remove partitions prior to July 31, 2021, if they provide respirators for voluntary use.

Exclusion

Fully vaccinated employees that test positive for COVID-19 must still be excluded from the workplace until the return-to-work requirements are met. Under the revised ETS, however, fully vaccinated employees with no symptoms no longer need to be excluded from the workplace due to close contact with a COVID-19 case.

Testing

Employers must continue to make free COVID-19 testing available during paid time to all employees who have had close contact with someone who has COVID-19, except those who are fully vaccinated before such close contact.

Outbreak

Only employee COVID-19 cases count toward the total number of cases within a 14-day period to meet the definition of an outbreak under the ETS and which trigger additional requirements. This should be welcome news for employers whose workplaces are open to the public.