Ready, Set, Re-open!
With the re-opening of California businesses on June 15, 2021, Los Angeles County “retired” its safety protocols for most industries. Unfortunately, while businesses opened their doors to the public, California employers remained confounded regarding their obligations to employees when Cal/OSHA announced it would maintain mask mandates despite contrary guidance from the Centers for Disease Prevention and Control (“CDC”).
However, after receiving numerous complaints from business and employee organizations alike, Cal/OSHA revised its COVID-19 Prevention Emergency Temporary Standards (“ETS”) on June 17, 2021, to bring California workplace safety requirements in line with recently updated guidelines from the CDC and the California Department of Public Health. That same day, Governor Newsom issued an executive order putting the revised ETS into effect immediately, bypassing the normal 10-day administrative review period.
Key Changes Have Been Made to Mask, Distancing, and Vaccination Documentation Requirements
The most significant ETS revisions include the removal of a mask requirement and modified testing and quarantine requirements for vaccinated individuals, new employer requirements to document employee vaccination status, and removal of many physical distancing and barrier requirements.
As further detailed in the Cal/OSHA FAQ’s Regarding Revisions to the ETS:
- Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contact with COVID-19 cases unless they have symptoms.
- There are no face-covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained on CDPH recommendations for outdoor use of face coverings.
- Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status. There are some settings where CDPH requires face coverings regardless of vaccination status. In outbreaks, all employees must wear face coverings indoors and outdoors when six feet of physical distancing cannot be maintained, regardless of vaccination status.
- Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request.
- Employers may not retaliate against employees for wearing face coverings (even if they are vaccinated).
- No physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
- Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
- Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
- No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
- Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations.
Unfortunately, the guidance regarding vaccination documentation requirements is vague. As stated in the FAQs: “Vaccination status must be documented. The revised ETS does not specify a particular method. The employer must record the vaccination status for any employee not wearing a face-covering indoors and this record must be kept confidential.”
The Department of Industrial Relations (“DIR”) suggests that employers may meet documentation requirements if:
- Employees provide proof of vaccination (vaccine card, image of vaccine card, or health care document showing vaccination status) and the employer maintains a copy.
- Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
- Employees self-attest to vaccination status and the employer maintains a record of who self-attests.
The DIR also notes that “nothing in the revised ETS prevents an employer from requiring all employees to wear a face-covering instead of having a documentation process.”
The FAQs further state that if an employee declines to state their vaccination status, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.
Some ETS Requirements, Including Maintaining a Written Safety Program, Remain in Effect
Finally, some requirements of the earlier ETS remain in effect, including:
- Having an effective written COVID-19 Prevention Program.
- Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
- Providing notification to public health departments of outbreaks.
- Providing notification to employees of exposure and close contacts.
- Requirements to offer testing after potential exposures.
- Requirements for responding to COVID-19 cases and outbreaks.
- Quarantine and exclusion pay requirements.
- Basic prevention requirements for employer-provided housing and transportation.
*Some employers may be aware that the Department of Industrial Relations and Cal/OSHA published a model written prevention program under the earlier ETS. Employment Department Chair Wendy Lane attended last week’s Cal/OSHA meeting during which the Board indicated that, in the next week or so, a subcommittee should be drafting and posting a new model written prevention program to reflect the revisions to the ETS. Please check the DIR employer resource page often for the revised written safety template.
As has been the case for all prior workplace guidelines, recommended safety practices are subject to change based on new medical and scientific information, fluctuating infection rates, development of virus variants, and more. While changes have been frequent over the last 18 months, we can all hope that we will soon return to some level of normalcy as immunization rates increase and infection rates decline in California.