California Employers Contend with Mixed Signals as the State Prepares to Reopen
Since California announced plans for “preparing to get back to normal,” many California employers have eyed California’s reopening date of June 15th as the date they can return to the office or resume normal operations. But even though it is clear California wants to reopen the economy, California employers that are preparing their return to work plans are still unsure of what steps they need to ensure a safe workplace for employees as they return. This is largely because California public health and safety agencies continue to impose significant obligations on employers related to COVID-19 preventive measures and management and some requirements are pending changes.
Along with directives and guidance in California’s Department of Public Health’s (“CDPH”) Blueprint Activities and Business Tiers Chart, employers may still have obligations under local public health orders and guidance. For example, the Santa Clara County Public Health Department requires focused safety measures to reduce the spread of COVID-19, including an obligation for employers to ascertain employees’ and personnel’s vaccinated status. Los Angeles County Public Health Department’s health officer orders similarly require employers to implement strict safety protocols by industry, which include enhanced cleaning and disinfection measures, requirements for ventilation, and ongoing COVID-19 exposure assessments and management.
Irrespective of the health orders, California employers are also still subject to the Department of Industrial Relations’ Division of Occupational Safety and Health’s (“Cal OSHA”) emergency temporary standards on COVID-19, which require most California employers to implement a COVID-19 Prevention Plan and COVID-19 preventive measures. While Cal OSHA’s emergency temporary standards were first adopted in November 2020 and meant to be temporary, the standards are not set to expire until October 2, 2021. Cal OSHA is facing heavy industry, worker, and public scrutiny over its response to the pandemic and fact that it now has standards in place that do not address, respond to, or align with the most current guidance from the Centers for Disease Control and Prevention (“CDC”). Even though the agency has released guidance on COVID-19 preventive measures in response to changes in CDC guidance on fully vaccinated persons, management of COVID-19 following an exposure, and need for certain preventive measures; the guidance still conflicts with the plain language of the adopted standards. The agency is also currently evaluating whether to revise its COVID-19 requirements in response to CDC guidance for “fully vaccinated” persons. Cal OSHA’s Standards Board even released proposed revisions several weeks ago and planned to consider revisions at its board meeting in May, but ended up delaying until further revisions could be considered and an emergency meeting could be held on June 3rd. Since delaying the decision on the emergency temporary standards, Cal OSHA has not communicated effectively with employers on their compliance obligations during this interim period or shared openly its plan for revising the standards. Instead, Cal OSHA quietly published the proposed revisions on May 28th and left employers searching their website to find the proposed changes.
Cal OSHA’s proposed changes for the emergency temporary standards show some hope for employers in being able to relax their preventive measures, but continue to impose stringent preventive measures and obligations. The proposed changes, in fact, would continue to impose workplace requirements for social distancing and use of face coverings, even for vaccinated employees. The proposed changes also include considerations for respiratory protection in workplace settings where respiratory protection has not been found to be needed to protect against potential exposures to COVID-19 under CDC guidance. Accordingly, even if adopted, Cal OSHA will still be imposing strict COVID-19 prevention requirements on employers, leading to employers that are reopening and returning to normal operations having additional workplace safety obligations even as other state restrictions may be relaxing.
California employers that are interested in attending the Standards Board meeting on June 3rd can attend the meeting by teleconference. Details on the teleconference and agenda are available here. Employers should also be on the lookout for updates from Cal OSHA following the board meeting.