Mark Twain never actually said “The reports of my death are greatly exaggerated.” But had he sat in on yesterday’s (June 3, 2021) Cal/OSHA Standards Board meeting, he might have said something similar about the proposed amendments to Cal/OSHA’s COVID-19 Emergency Temporary Standards (“ETS”).
And no one would blame him because, less than an hour after voting to reject the proposed amendments to the ETS, Cal/OSHA’s Standards Board completely changed course by voting unanimously to approve the amendments. The amended ETS, which will apply to most California employers and workplaces, is expected to take effect June 15.
What does this mean for California employers?
In summary, the amendments will require employees who work indoors to continue wearing face coverings indefinitely, except in certain limited circumstances, but also will allow employers to relax physical distancing requirements after confirming which employees are fully vaccinated and providing unvaccinated employees with respirators for their voluntary use.
Notwithstanding California’s June 15 reopening target, the amended ETS will require employees to wear face coverings in all indoor worksites indefinitely (or at least until the ETS either is rescinded or further amended). Employers must provide employees with face coverings, and “ensure” that employees wear them over the nose and mouth when indoors, or when outdoors and less than six feet away from other persons.
There are a few exceptions to this rule. Employees do not need to wear face coverings:
- When alone in a room.
- When all persons in a room are fully vaccinated and do not have COVID-19 symptoms.
- While eating and drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent feasible.
- While wearing respirators required by the employer and used in compliance with Cal/OSHA’s respirator standard.
- While performing specific tasks which cannot feasibly be performed with a face covering. This exception is limited to the time period in which such tasks are actually being performed.
- While outdoors, but only if they are fully vaccinated and do not have COVID-19 symptoms.
There are additional exceptions for employees who cannot wear face coverings for medical conditions, mental health conditions, or disabilities, but those exceptions impose additional requirements, such as testing.
Inversely, employers cannot prevent employees from wearing face coverings when face coverings are not required, unless doing so would create a safety hazard.
The ETS also changes the definition of face covering to: “a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers. A face covering has no visible holes or openings and must cover the nose and mouth. A face covering does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.”
From June 15, 2021 until July 31, 2021, employers must comply with either “Option A” or “Option B” below for all employees working indoors or at “outdoor mega events”:
- Option A:
- All employees shall be separated from other persons by at least six feet, except for:
- employees wearing respirators required by the employer and used in compliance with the respirator standard;
- where an employer can demonstrate that six feet of separation is not feasible; and
- momentary exposure while persons are in movement.
- All employees shall be separated from other persons by at least six feet, except for:
Methods of physical distancing include: telework or other remote work arrangements; reducing the number of persons in an area at one time, including visitors; visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path of travel; staggered arrival, departure, work, and break times; and adjusted work processes or procedures, such as reducing production speed, to allow greater distance between employees.
When it is not feasible to maintain a distance of at least six feet, individuals shall be as far apart as feasible.
- Option B:
- All employees who are not fully vaccinated shall be provided respirators for voluntary use in compliance with the respirator standard.
It is not clear if employers can select Option B and simply offer respirators to all employees for their voluntary use without determining who is vaccinated, but the more likely interpretation of the ETS is that employers will have to determine which employees are vaccinated in order to select Option B.
The ETS states “fully vaccinated” means the employer has documentation showing that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Vaccines must be FDA approved or have an emergency use authorization from the FDA. It is not clear what “documentation” means, but a representative of the Division stated at the June 3 meeting that Cal/OSHA specifically did not require employers to hold a copy of vaccination cards in order to allow employers different options for observing vaccination records, and that more direction will be provided in FAQs. Thus, it appears unlikely that “documentation” will mean an employee’s self-certification of vaccine status like the mandate of the Santa Clara County order, but what “documentation” will ultimately mean remains to be seen.
And respirators are defined in the ETS as “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.”
While the employer must provide respirators, employees are not required to wear them.
The ETS also introduces the new setting called “outdoor mega event,” which means an event that includes over 10,000 participants or spectators outdoors and may include conventions, shows, outdoor nightclubs, concerts, sporting events, theme parks, fairs, festivals, large races, and parades.
The amendments make other significant changes to the current ETS, including:
- Changes to the definition of “close contact,” a “COVID-19 case,” and “Worksite.”
- Replacing the “exposed workplace” standard with a new “exposed group” test.
- Imposing new notice requirements following COVID-19 cases in the Worksite.
- Eliminating the requirement to offer post-exposure testing to employees who are fully vaccinated or who have recovered from COVID-19 following a “close contact.”
- Exempting fully vaccinated and recovered employees from the worksite exclusion rules following a close contact.
- Making certain changes to the exclusion pay requirements.
- Changing the testing and return to work rules to better align with CDC guidance.
Public commentary—including employer concerns
The June 3 meeting had over 500 participants and almost 8 hours of public comment. The ETS’s requirement that employers provide respirators for unvaccinated employees after July 31 was a top concern, with employers anticipating that they will have to stockpile respirators at great expense to offer to unvaccinated employees who may simply choose not to wear them (while depleting supplies better kept for health care workers or Wildfire Smoke Emergency Regulations). Other participants complained that there are no provisions in the ETS requiring medical clearance and fit testing for respirators (this is not technically correct), which they asserted could lead to decreased effectiveness against COVID-19 and respiratory harm to employees. Participants also emphasized that the ETS fails to specify what “documentation” counts as acceptable proof of vaccination, and fails to clarify recordkeeping requirements for that documentation.
Additional action expected
Immediately before voting to approve the amended ETS, the Standards Board formed a subcommittee of three Board members who will meet directly with Cal/OSHA staffers to provide suggestions for revising the amended ETS to focus on some of the issues raised by Board members (several of which appeared to lead to the Board’s initial decision not to approve the proposal), but the process is expected to take at least several months. In the interim, it would not surprise us to see Governor Newsom intervene by issuing an Executive Order rescinding the ETS or modifying it in conjunction with his June 15 reopening target. Thus, even if the amended ETS takes effect around June 15 as expected, it may not be in place for long. Perhaps, then, Twain’s comments about the demise of the amendments will prove inaccurate.
What should California employers do now?
Employers should review the amended ETS and consider any necessary updates to company policies or procedures to be prepared to comply if the amended ETS take effect June 15 as expected. The need for robust FAQs were mentioned several times by Standards Board members, so employers should keep an eye out for FAQs to assist with compliance efforts. Employers should also stay on top of further developments, including Governor Newsom’s expected Executive Order to reopen the State and the possibility of additional revisions to the ETS in the coming months. For assistance navigating the Cal/OSHA ETS or your other employment needs, contact your Baker McKenzie employment attorney.