Cal/OSHA Postpones Discussion of Changes to California’s COVID-19 ETS

By Sean Paisan © Jackson Lewis November 23, 2021
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As uncertainty about the federal Occupational Safety and Health Administration's (OSHA's) emergency temporary standard (ETS) persists, Cal/OSHA's standards board did not discuss the changes to California's COVID-19 ETS at its Nov. 18 meeting. The board's consideration of the Horcher proposal (a verbatim adoption of the federal OSHA regulation) will be delayed until there is a more settled situation with the litigation regarding the federal OSHA standard.

In the meantime, Cal/OSHA's ETS as passed in June remains in effect. On June 17, the standards board passed an amended ETS and Gov. Gavin Newsom issued an executive order to make the amended ETS effective as soon as they were filed with the secretary of state.

The changes mainly attempted to bring the ETS in alignment with changes to California Department of Public Health (CDPH) orders.

The following are the highlights under the existing ETS.

Face Coverings

All employees regardless of vaccination status do not have to wear masks outdoors. However, unvaccinated employees must be trained that face coverings are recommended outdoors for people who are not fully vaccinated when six feet of physical distance between people cannot be maintained.

Fully vaccinated employees do not have to wear a face-covering indoors unless (1) the employees' work is subject to respiratory protection requirements under other health and safety standards, (2) there is an outbreak in the workplace, defined as three or more employees testing positive within a 14-day period or (3) the vaccinated employee is conducting COVID-19 screenings. Fully vaccinated employees also do not have to wear face coverings outdoors.

Employers must provide face coverings and ensure they are worn by unvaccinated employees when working indoors or in a vehicle with others.

Exceptions to face-coverings rules for unvaccinated employees include:

  • When employees are outside.
  • When an employee is alone in a room or vehicle.
  • While eating or drinking, but only if employees are at least six feet apart and outside air has been maximized to the extent feasible. (Note that this is one area where physical distancing is still required. However, employers are still directed to evaluate the need for physical distancing and potential placement of barriers.)
  • When employees wear respirators under an employer's respiratory protection program.

Employers are also required to provide face coverings to comply with applicable orders and the ETS, as well as to employees upon request, regardless of an employee's vaccination status.

Physical Distancing

The amended ETS mostly eliminates physical distancing and barrier requirements, without consideration of employees' vaccination status.

One clear exception is for locations where unvaccinated employees are eating and drinking, as noted above. Physical distancing is also still required in some cases, including:

  • If an employer assesses a workplace hazard and determines that physical distancing is necessary for the workplace.
  • If there is an outbreak, employers must evaluate whether physical distancing or barriers are needed to control transmission.

Physical distancing and barriers are also mandated in the event of a major outbreak, defined as 20 or more employees testing positive.

Testing

Employers must continue to offer testing at no cost to employees under the following circumstances:

  • The employee is symptomatic and unvaccinated, regardless of whether there is a known exposure.
  • The employee is unvaccinated and has had a workplace exposure to COVID-19 (i.e. close contact with known or suspected COVID-19 infected person).
  • The employee is vaccinated, but has had a known workplace exposure, and has developed symptoms.
  • Employees are unvaccinated in an outbreak (i.e., 3 or more employee positives within a 14-day period)--this applies to unvacicnated employees.
  • Employees are in an exposed group during a major outbreak (i.e., 20 or more employee positives within a 30-day period)--this applies to all employees in the group.

Exclusion

Fully vaccinated employees and certain employees who have tested positive for COVID-19 previously, do not need to be excluded from the workplace following an exposure to COVID-19 unless they become symptomatic.

Documentation for Vaccine Status

To take advantage of the relaxed preventive measures, Cal/OSHA's amendments require that the employer document employees' vaccination status, especially for those not wearing a face covering.

Though the ETS does not specify a particular method for documenting status, the standard is performance-based and requires the documentation method to be effective. The FAQs for the amended ETS state acceptable options for documentation include:

  • Employees provide proof of vaccination, including a vaccine card or health care document showing vaccination status, and the employer maintains a copy.
  • Employees provide proof of vaccination and 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.

Note that some of the options for documentation can have additional compliance obligations under Cal/OSHA's Access to Medical Records Standard and related regulations. The alternative to collecting this information per Cal/OSHA is to require all employees to wear a face-covering instead of having a documentation process.

If an employee declines to state their vaccination status, the employer is required under the amended ETS to treat the employee as unvaccinated.

Sean Paisan is an attorney with Jackson Lewis in Orange County, Calif. © 2021 Jackson Lewis. All rights reserved. Reposted with permission. 

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