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6th Circuit Lifts Injunction of Federal OSHA Vaccinate or Test Mandate and California Updates the COVID-19 ETS

by | Dec 20, 2021 | CAL/OSHA, COVID, Employment Law, Vaccination

6th Circuit Dissolves Injunction: Fed. OSHA’s Mandate is Effective…For Now.

On December 17, 2021, the 6th Circuit Court of Appeal dissolved the 5th Circuit’s injunction with respect to U.S. Occupational Safety & Health Administration’s employer vaccine mandate.  Federal OSHA announced that the issuance of citations for noncompliance with the requirements of the Emergency Temporary Standard (“ETS”) will not occur prior to January 10, 2022 and that it will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”  (See “Litigation Update.”)

The ETS standard provides an option to employers which boils down to either mandate workforce vaccination or have unvaccinated employees undergo weekly testing for COVID-19.  Employers must verify vaccination status of employees and implement their mandatory policies in short-order. Immediately, several petitioners in the case filed for an immediate stay with the United States Supreme Court.  It is unknown how quickly, if at all, the matter will be taken up.

California’s Occupational Safety & Health Standards Board Adopts Changes to California’s COVID-19 ETS

On December 16, 2021, California’s OSHSB “readopted” the COVID-19 ETS and incorporated several changes to bring the ETS more in-line with present CDPH guidance.

Some of the changes are as follows:

  1. Face Covering Definition Narrowed. Face coverings must completely cover the nose and mouth and be secured with ear loops, ties, or bands.  Gaiters must be double layered.
  2. Testing Must be Made Available to Vaccinated Employees. The revisions have removed the exception to close contact testing requirements for those who are fully vaccinated.  Employers must generally provide testing to vaccinated employees.  The same goes for offering testing to vaccinated employees in an outbreak setting.
  3. Vaccinated Employee Close Contacts Must Wear Face Coverings. When a full vaccinated employee has close contact with a COVID-19 case, they may remain in the workplace provided they are symptomless and have not tested positive, provided they wear a face covering and maintain social distance.
  4. All Close Contact Exceptions Must Be Provided CDPH Precaution Recommendations. The regulations state that all employees not excluded under the close contact exceptions must be provided information relating to the CDPH’s recommendations for close contacts.
  5. Close Contact Return to Work Requirements. The default time period for exclusion of close contacts is 14 days since last known close contact if the employee does not develop symptoms, but there are two scenarios where a symptomless employee with close contact may return earlier: (1) Ten days have passed since last known close contact and the employee wears a face covering and distances for up to 14 days following the last known close contact; or (2) Seven days have passed since last known contact and the employee has tested negative for COVID-19 using a COVID-19 test taken at least five days after last known close contact and the employee continues to wear a face covering and maintains six feet of distance.
  6. Testing is Narrowly Defined. In what appears to be an attempt to deal with at-home testing, Cal/OSHA now requires that the test is (a) FDA approved; (b) properly administered; and (c) the test cannot be both self-administered and self-read unless it is observed by the employer or authorized telehealth proctor.

California’s Department of Public Health and Cal/OSHA Clarify New Face Covering Mandate

On December 13, 2021, California’s Department of Public Health issued guidance which requires face coverings to be worn in indoor public settings.  California’s COVID-19 ETS states that employers must provide face coverings and “ensure they are worn by employees when required by orders from the CDPH.”  Later that week, Cal/OSHA updated its COVID-19 ETS FAQ to clarify that the, “guidance is such an order.”

The CDPH updated its Q&A to clarify that its guidance applies to all workplaces irrespective of whether they serve the public.  This means employers should take the Cal/OSHA’s and the CDPH’s combined statements to indicate that this will be Cal/OSHA’s position on face coverings in the workplace.

Should you have questions concerning your business’s compliance with COVID-19 requirements, please contact the attorneys at Sagaser, Watkins & Wieland, P.C.