By Mark Powell

California’s COVID-19 workplace safety standards will remain in effect until January, but employers might be able to lessen their regulatory burden by treating all workers as unvaccinated, a risk management consultant said.

Under the state’s temporary emergency standards — which were updated last month following an executive order from Gov. Gavin Newsom — most California employers no longer have to require workers to wear face coverings if they’ve been fully vaccinated.

Many employers are free to let vaccinated workers take off their masks, but some companies may want to avoid potential legal and regulatory hurdles that come with finding out which workers are vaccinated, said Steve Thompson, senior vice president for Aspen Risk Management Group.

“Our key strategy is: Don’t ask the question,” Thompson said Wednesday during a webinar. “Just have all employees wear face coverings.”

Employers can still require all workers to wear masks, which could help businesses avoid the majority of new regulations, including required documentation of vaccine status and employee segregation requirements, Thompson said.

“What we are essentially saying is, there’s a key aspect to this regulation where, if you follow what you were doing before — i.e., the CDC guidelines on masking, social distancing, etc., etc. — you pretty much eliminate 80% of the regulations that we’ve been going through today,” he said.

Based on rules the California Occupational Safety and Health Standards Board adopted last November, employers still are required to maintain COVID-19 prevention programs.

These programs must include detailed, COVID-focused plans for training employees, reporting outbreaks to public health officials, notifying workers of exposures, offering testing after exposures, identifying COVID-19 hazards and responding promptly to reported cases.

“There’s really nothing new or exciting in this, other than the fact it’s written specifically for COVID,” Thompson said.

The regulations do not apply to locations with one employee and no contact with other workers, people who work from home, employees who telecommute and places of employment designated as at risk for aerosol transmissible diseases.

Under changes enacted June 17, fully vaccinated workers without COVID-19 symptoms don’t have to be tested or quarantined following close contact with workers who may have contracted the virus.

Except during outbreaks, face coverings are no longer required for workers who are outdoors, regardless of whether they’re vaccinated.

Upon request, employers also are required to provide respirators to unvaccinated employees while working inside or riding in a vehicle with other employees, according to the updated standards.

Businesses may allow employees who are fully vaccinated to ditch face coverings, but employers also must document individual workers’ vaccination statuses, Thompson said.

“It’s really important to understand that this is not a rule, this is not a guideline,” he said. “When you watch the popular press, you’re given the impression that employees are required if they’re fully vaccinated to not wear a mask, that they’re fully vaccinated so they don’t have to wear a face covering. Well, it’s not exactly that way. OSHA said you can allow it as an employer, should you decide that.”

Employers also are allowed to enact COVID-19 safety guidelines that are even stricter than Cal/OSHA’s requirements, Thompson said.

Businesses still must offer free COVID-19 testing and benefits information to all employees who may have been exposed to the virus, with a few exceptions:

  • Employees who were fully vaccinated before the possible exposure and do not show COVID-19 symptoms.
  • Potentially infected workers who returned to their jobs and have been free of COVID-19 symptoms for 90 days.
  • Workers who never developed symptoms for 90 days after their first positive test.

Whether employers want to follow these new optional guidelines again depends on whether they want to create multiple sets of workplace guidelines, Thompson said.

Employers can require workers to get vaccinated but they must be careful not to violate the Fair Employment and Housing Act, which states that businesses cannot discriminate against employees with “protected” characteristics, such as a disability or holding “sincerely held” religious beliefs, he said.

Businesses also are not obligated to force workers to show proof of being fully vaccinated. Without such a policy, if employees decline to state whether they are fully vaccinated, employers must treat them as unvaccinated and cannot discipline the employee.

In the end, treating all workers as unvaccinated may reduce headaches for many employers, Thompson said.

“Again, we have to understand who’s fully vaccinated and who’s not,” he said. “If we treat everybody the same, then we would just follow the procedures for an unvaccinated person. Why change anything that you’ve been doing? Because now, if you go down the path of vaccinated or unvaccinated, that’s a whole lot of documentation and tracking. How do you handle new employees? How do you handle when someone has a status change or joins a particular religion where they no longer want to share information or otherwise?”