March 28, 2023

Volume XIII, Number 87


March 27, 2023

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Cal/OSHA Publishes Revised Proposed COVID-19 Emergency Temporary Standard Revisions for June 17 Standards Board Vote

On June 11, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA) published proposed revisions to the current Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). On June 17, 2021, the Standards Board will meet again to vote on adopting proposed revisions. This is the third updated revision that the Standards Board has considered in the last month. Until the new ETS takes effect, employers must comply with the November 30, 2020, ETS, which remains in place.

The Standards Board again will conduct its meeting via an online platform with an opportunity for public comment. More than 600 people attended the last Standards Board meeting, with California employer representatives and trade groups pleading for consistency with the California Department of Public Health (CDPH) COVID-19 directives and guidance regarding vaccinated employees and face coverings.

The proposed regulation walks back prior proposals but still distinguishes between vaccinated and unvaccinated workers.

Proposed COVID-19 Revised Regulation Highlights

  • Physical Distancing Requirements Deleted: 3205(c)

Prior text retained physical distancing protocols until July 31, 2021. This revision reflects a more consistent alignment with Governor Newsom’s California reopening guidelines.

  • Face Coverings for Vaccinated/Unvaccinated Workers: 3205(c)(6) [formerly (c)(7)]

Under the presently effective regulation, all workers, regardless of vaccination status, must wear face coverings when indoors, or when outdoors and closer than six feet to each other, subject to certain exceptions. In this latest proposal, vaccinated workers are not required to wear face coverings generally. For unvaccinated workers, face coverings will be required indoors or when in vehicles, with limited exceptions.

  • Documentation of Vaccination

The proposed revised regulation includes a slightly revised definition of “fully vaccinated,” which now reads that the

employer has documented 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 (U.S. Food and Drug Administration) approved; have an emergency use authorization from the FDA; or, for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO).

This inclusion of international vaccines may assist international companies as employees return to the workplace.

However, the revised regulations still do not specify whether an employer must obtain a copy of a vaccination card, simply review the card, or can rely on self-certification forms instead. We expect Cal/OSHA to issue answers to frequently asked questions (FAQs) to address documentation requirements.

  • New Training Requirements

According to the proposed revised regulations, employers must continue to provide COVID-19 training, including new training subjects such as COVD-19 vaccination and testing access and policies, leave policies, and the employer’s respirator policies.

  • N95 Respirators for Unvaccinated Employees and Stockpiling3205(c)(6)(B) and Others

This latest revision, adding the terms, “upon request” suggests that employers may be able to wait to acquire N95 respirators until employees request them.  FAQs may clarify the timeframe for California employers to respond to employee requests for N95 masks.

Current Regulation Status

The present emergency regulation, which became effective on November 30, 2020, remains in effect until the Standards Board passes Cal/OSHA’s latest revisions and the Office of Administrative Law approves them.  As a result, the new text will not go into effect until after June 15, 2021, with June 28, 2021 being the likely effective date.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 164

About this Author

Karen Tynan, employment lawyer, Ogletree Deakins
Of Counsel

Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

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Kevin Bland, Ogletree Deakins Law Firm, Workplace Safety and Construction Attorney

Kevin D. Bland joined Ogletree Deakins law firm in their Orange County office in 2011. Mr. Bland provides a wealth of experience in Health and Safety.  Before he began his legal career, Mr. Bland had nearly 20 years of construction, safety, and business experience.  In 2000, he launched his legal career after graduating cum laude from Whittier School of Law. Mr. Bland holds a Contractor’s “A” License and his practice focuses primarily on safety, risk management, Cal-OSHA regulatory rulemaking, and Cal/OSHA citation appeals. He counsels and represents various...

Charles Thompson, Ogletree Deakins Law Firm, Employment Law Attorney

Charles L. Thompson IV counsels and defends employers in wrongful termination, discrimination, and other employment-related matters.  These areas include trade secrets and unfair competition, California and federal leaves of absence, ADA compliance, and wage and hour compliance.

Charles also represents employers in traditional labor law matters. He advises and represents employers in collective bargaining. He also represents employers in matters before the National Labor Relations Board, including in unfair labor practice and representation...