Matthew J. Roberts, Esq.  June 16, 2021 HR Watchdog

On Thursday June 17, 2021, the revised California Division of Occupational Safety and Health (Cal/OSHA) COVID-19 workplace safety rules saga may finally be coming to an end. After nearly two months of proposed, rejected, approved and withdrawn amended COVID-19 workplace safety rules, the California Occupational Safety and Health Standards Board (OSHSB) is scheduled to vote on a new set of amendments on June 17. Governor Newsom has stated he will issue an executive order to put theses new rules into effect immediately.To help employers understand the more ambiguous terms of the proposed amendments, on June 15, 2021, Cal/OSHA issued new guidance on the proposed amendments addressing larger questions that the public has raised.

As previously reported, on May 7, 2021, Cal/OSHA proposed its first amendment to the COVID-19 Emergency Temporary Standards that had been in effect since November 30, 2020. Before a vote could be held on those amendments, the U.S. Centers for Disease Control and Prevention (CDC) substantially altered its face covering guidance, suggesting fully vaccinated people could go almost anywhere indoors and outdoors without a face covering. Very shortly after the CDC released its guidance, the California Department of Public Health (CDPH) declared that it would adopt this guidance as part of the state’s June 15 grand reopening. The temporary standard amendments were tabled to digest these new guidelines and potentially revise the amendments.

On May 28, 2021, Cal/OSHA proposed new amendments that didn’t entirely conform with the CDC and CDPH guidance on face coverings for fully vaccinated employees. These amendments subsequently were rejected and then approved the same day, but then a few days later, they were withdrawn after the CDPH reiterated to Cal/OSHA that vaccinated persons will get to go most places without a face covering. Finally, on June 11, 2011, Cal/OSHA proposed a new set of amendments that, amongst other things, more closely conforms to the CDC and CDPH face covering standards. The new major amendment changes includes:

  • An elimination of the physical distance requirement in non-outbreak settings;
  • Fully vaccinated employees will not have to wear face coverings, but unvaccinated employees must continue to still do so indoors in the same room as others or in vehicles with other employees;
  • Employers will need to make available N95 respirators upon request to unvaccinated employees; and
  • Employers will need to document vaccination status in order to utilize any of the relaxation of rules related to fully vaccinated workers.

A vote on these amendments is scheduled to take place on June 17.

We anticipate that Governor Gavin Newsom will issue an executive order shortly after any vote approving the amendments that will make these amendments effective immediately. Until that time, the original temporary standards effective November 30 are still in effect.

Here’s the key points of the new Cal/OSHA June 15 guidance.

Physical Distancing Requirements

Cal/OSHA has eliminated the physical distancing requirement in all settings unless the workplace is experiencing a “major outbreak” (20 or more COVID-19 cases in a 30-day period). However, the emergency temporary standard still requires employers to assess and evaluate transmission hazards in the workplace and after an “outbreak” (three or more COVID-19 cases in a 14-day period). Physical distancing may be necessary after that assessment. Employers may also continue to voluntarily impose physical distance measures in the workplace.

Face Coverings

In general, fully vaccinated employees no longer need to wear face coverings unless the CDPH order requires them to do so. As of June 15, the CDPH requires face coverings on public transit; in K-12 educational facilities; healthcare and long-term care settings; correctional and detention facilities; and shelters.

Employees who are not fully vaccinated must continue to wear face coverings indoors and in vehicles with others. There are a few exceptions, and the most common are when the employee is alone in a room or vehicle; when eating or drinking; when a medical accommodation is required; or when the job duties make a face covering infeasible or hazardous.

Employees who are not fully vaccinated don’t need to wear face coverings outside; however, the revised temporary standard require employers to recommend face coverings to those employees when physical distancing of six feet or more cannot be maintained.

N95 Respirators

Employers must provide N95 respirators to any unvaccinated employees who works indoors or in a vehicle who requests one. Employers must also provide N95s to any exposed employees during a “major outbreak.” N95 respirator use in either situation is voluntary. The employer must provide an N95 that is the correct size, and the employee must receive basic instruction on how to create an appropriate seal around the nose and mouth.

Cal/OSHA suggests two methods for employers to comply with the N95 provision requirement. Employers can either just stock N95s and offer them upon request, or employers may take an initial poll of employee to determine who wishes to be provided an N95 and then stock an appropriate amount of N95 respirators of the correct size and type based upon this demand. An employer should provide a requested N95 as soon as possible, and in the case of a “major outbreak,” they must do so immediately and without request from an employee.

Cal/OSHA also reminds employers that filtering facepiece respirators cannot be cleaned and disinfected so they must be replaced if they get damaged, deformed, dirty or difficult to breathe through. Cal/OSHA recommends providing a new N95 respirator at the beginning of each shift for employees who request one and recommends that employers follow the manufacturer’s instructions.

Documentation of Fully Vaccinated Status

The amended emergency temporary standard requires employers to document an employee’s fully vaccinated status in order to take advantage of the relaxed rules for fully vaccinated employees. “Fully vaccinated” means the employee has received the final dose of the vaccine at least 14 days prior to certifying they are fully vaccinated.

Cal/OSHA provides employers three different ways to document an employee’s fully vaccinated status:

  • Employers obtain a copy of the record showing proof of full vaccination;
  • Employers view the record showing proof of full vaccination but do not keep a copy and instead maintain a record of the employees who showed their proof; or
  • Employees self-attest to full vaccination and the employer maintains a record of those who self-attested.

For purposes of the temporary standard, if an employee refuses to disclose their vaccination status, the employer must treat them as unvaccinated. Any record demonstrating vaccination status is a medical record and must be kept confidential.

Matthew J. Roberts, Employment Law Counsel/Subject Matter Expert