The state of California, after a series of recommendations that were made and then withdrawn, has finally settled on new workplace safety guidance. The Cal-OSHA Advisory Board approved the updated workplace COVID-19 prevention protocols on June 17, 2021, and Governor Gavin Newsom immediately issued an executive order implementing them.
The guidelines help align workplace safety standards with the state public health guidance. Here are the key takeaways:
- Employers generally may allow fully vaccinated employees to go mask-free. Except in certain facilities (such as healthcare facilities and schools), employers may allow employees to go mask-free if they are fully vaccinated. For an employee to meet the definition of “fully vaccinated,” the employer must have documentation that two weeks have passed since the employee received the entire COVID-19 vaccination regimen (i.e., both doses for vaccines that require it). Vaccination status can be verified with a vaccination card, a photo of a vaccination card, documentation from a healthcare provider, or self-attestation. The employer need not keep a copy of any documentation, and regardless of how the verification is conducted, the vaccination status information must be kept confidential. Employees have the right to decline to say whether they are vaccinated, but if they do, Cal-OSHA requires that they be treated as unvaccinated.
- Masks will still be required for the unvaccinated. Unvaccinated individuals are still required to wear masks indoors most of the time. The only exceptions are if they are alone in a room, eating and drinking, require an accommodation, or have job duties that make a face covering infeasible or hazardous. Additionally, in the event of an outbreak (three or more employees in an exposed group), all employees – including those who are vaccinated – must wear masks indoors.
- No mandated social distancing. Employers can eliminate physical distancing and barriers at the workplace, regardless of vaccination status, unless there is an outbreak.
- N-95 respirators must be available “upon request.” Employers must provide N-95 respirators for unvaccinated employees “upon request” by the employee. In particular, they must be provided to unvaccinated employees and, in the event of an outbreak, to all employees.
- Ventilation evaluations. Employers are required to evaluate ventilation systems and the use of additional air cleaning systems to maximize outdoor air and increase filtration.
While the new guidance is a substantial change from the prior rules, Cal-OSHA left some the prior guidance in place. Employers are still required to maintain a thorough written COVID-19 Prevention Program and to adhere to testing guidelines if an outbreak occurs. They are also required to provide notice of potential exposure to employees and to notify public health departments of an outbreak.
For assistance with these and other COVID-19 compliance issues, contact an author of this post or the Hogan Lovells lawyer with whom you regularly work.
Summer Associate Kaitlyn Hittelman contributed to this blog.