Cal/OSHA ETS COVID-19 Regulations Modified By Cal/OSHA Board

California’s Occupational Safety & Health Standards Board met on June 17, 2021, and approved a number of changes to the Cal/OSHA Emergency Temporary Standard relating to protection from COVID-19.  On the same day, Governor Newsom issued an executive order that made the regulations effective at the time the regulations are received by the Secretary of State’s Office of Administrative Law.  Therefore, the new regulations are immediately effective.  This post is meant to provide a brief, general overview of the new generally applicable standards.  However, there are additional sections that relate to employer-provided transportation and housing.

• The regulations treat fully vaccinated and non-fully vaccinated employees differently in a number of situations.
  • Fully vaccinated is defined as an employee who the employer has documented has, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-does COVID-19 vaccine.
  • The Cal/OSHA FAQs states this vaccination status may be documented if, “[e]mployees self-attest to vaccination status and employer maintains a record of who self-attests.” The Cal/OSHA FAQs suggest there are other ways employers can document vaccination such as maintaining a copy of a vaccine card of employees or recording employees who presented proof of vaccination, but not the vaccine record itself (See Cal/OSHA FAQ, “Vaccines.”)
  • In certain situations the employer must continue to mandate the wearing of face coverings irrespective of vaccination status per the guidance of the California Department of Public Health. (i.e. schools, healthcare settings, long-term care facilities, public transit, etc.)

• Employers must make face coverings available to vaccinated and unvaccinated persons upon request and must provide face coverings to employees who must wear them and “ensure they are worn when required by orders from the CDPH.” Employers must provide respirators to unvaccinated employees, upon request, for voluntary use.
  • The definition of “face covering” has been narrowed and excludes scarves, ski masks, balaclava, bandana, turtlenecks, collars, or a single layer of fabric.
  • A respirator is defined as a, “respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.” Cal/OSHA has published a list of vendors with available supply and the CDC has a guide to which respirators are NIOSH-Approved.
• Employers must, “develop and implement a process for screening employees for and responding to employees with COVID-19 symptoms.”
• General physical distancing requirements and barrier requirements have been removed. Exceptions arise in outbreak settings and when the employer’s hazard assessment deems it necessary.
• The defined “exposed group,” narrows the scope to employees in outbreaks to those which share common working locations and excludes areas that persons momentarily pass through if everyone is wearing face coverings. Distinct, non-overlapping shifts or work crews may be separated for the purposes of the outbreak requirements.
• Testing must be offered at no cost during paid time to: (i) symptomatic unvaccinated employees, regardless of whether there is a known exposure; (ii) unvaccinated employees after an exposure; (iii) unvaccinated employees in an outbreak; and (iv) all employees during a major outbreak.
• Notifications must be provided to any employee at the defined worksite when a COVID-19 case was present during the high-risk exposure period and specifically to people at the worksite that may have been exposed to COVID-19.
  • The notice may be delivered in any manner in which it can reasonably be anticipated to be received by the employee within one business day of sending. (i.e. personal service, email, or text messages.)
  • This notice must be given verbally if the employee has not received the notice or has limitations on understanding the notice.
  • The notice must specify the employer’s disinfection plan as required under the Labor Code.
• There are new training requirements with respect to the proper use of respirators to employees who are required to use the respirators. Employers must convey information concerning the availability and effectiveness of vaccinations.  Employers must also inform workers that have specific risk factors related to COVID-19 how they may request accommodations.
• Employers must continue to provide “exclusion pay,” to excluded employees.
  • The pay must be provided at the employees, “regular rate of pay no later than the regular pay day for the pay period(s) in which the employee is excluded.”
  • The section states that unpaid exclusion pay wages are subject to enforcement procedures in existing law.
  • There are two exceptions to the pay requirement that apply: (1) the employee has received disability payments or was covered by workers’ compensation and received temporary disability; or (2) where the employer demonstrates that the close contact is not work related. If the employer believes that either of these apply, the employer must inform the employee of the denial and the applicable exception.
  • The regulations note that employers may use employer-provided sick leave where consistent with law. The unabridged FAQ states, “an employer cannot require the employee to use the standard paid sick leave mandated under Labor Code section 246…”
• Employers must evaluate how to maximize ventilation with outdoor air and whether to use portable or mounted High Efficiency Particular Air (HEPA) filtration units or other air cleaning systems to reduce the risk of COVID-19 transmission.
• Finally, employers may not prohibit employees from or retaliate against employees for wearing a face covering, irrespective of vaccination status.

If you have questions about compliance with the new regulations or would like general advice, please contact the attorneys at Sagaser, Watkins & Wieland, P.C.