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Cal/OSHA Sends Shock Waves Throughout California by Withdrawing Revised Emergency Temporary Standards That Would Have Relaxed Some Rules for Fully Vaccinated Employees

It has been an active week in California with the release of new statewide face covering guidance, the alignment of Los Angeles County and San Francisco with this guidance, and the withdrawal of the revised Cal/OSHA Prevention Emergency Temporary Standards by the California Division of Occupational Safety and Health Standards Board (the “Board”).

Of most importance, covered employers and workplaces must continue to comply with the more restrictive original Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) that have been in place since November 2020, not the revised version approved by the Board on June 3, 2021 (we wrote about the original standards here).  In short, the workplace exceptions for fully vaccinated employees have been withdrawn, at least for the time being.

California Department of Public Health Face Covering Guidance

On June 9, 2021, the California Department of Public Health (“CDPH”) released new Guidance on Face Coverings (“June 9 CDPH Guidance”) intended to align with the CDC Guidance for vaccinated individuals. Of importance, the June 9 CDPH mask wearing guidance does not apply to employees, who must continue to wear face coverings in compliance with the ETS.

Under the June 9 CDPH Guidance:

  • For fully vaccinated individuals, masks are not required except in the certain settings (e.g., public transit, K-12 schools, healthcare settings, emergency shelters).

  • For unvaccinated individuals in indoor public settings and businesses, masks are required.

What this means for Businesses:

  • In settings where masks are required only for unvaccinated individuals, businesses, venue operators or hosts may choose to:

    • Allow vaccinated individuals to self-attest prior to entry;

    • Verify Vaccination Status to determine whether individuals are required to wear a mask; or

    • Require all patrons to wear masks.

Los Angeles County and San Francisco Follow Suit

Los Angeles County and the City of San Francisco revised their local guidelines to align with the June 9 CDPH Guidance and the State’s Beyond the Blueprint for Industry and Business Sectors (which we wrote about here). Both of these guidelines become effective June 15, 2021, and both contain reminders that Cal/OSHA regulations will continue to apply to employers

Cal/OSHA Standards Board Special Meeting

In light of the June 9 Guidance release, the Cal/OSHA Standards Board held a special meeting at which it voted to withdraw the revisions to Cal/OSHA’s COVID-19 Prevention ETS that, on June 3, it had voted to approve and send to the Office of Administrative Law for review. As a result, the ETS adopted in November of 2020 will remain in effect.  Cal/OSHA indicated it would review the new mask guidance and bring any recommended revisions to the Board.  The Board could consider new revisions at its next meeting on June 17.

What this Means for Employers

Until Cal/OSHA revises the ETS, employers must continue to comply with the November 2020 version (which can be found here).  These rules do not contain any exceptions for fully vaccinated employees.  All workers subject to the ETS must continue to wear masks and follow physical distancing rules, among other requirements, until further notice. We will advise as soon as anything changes.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 162
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About this Author

Senior Attorney

JENNIFER L. NUTTER is an Associate in the Labor and Employment and Litigation practices in the Los Angeles office. She has a broad background in civil litigation, including general business litigation, legal malpractice, medical practice, wrongful death, unfair competition, and employment. Ms. Nutter now focuses on employment law, representing employers in a wide variety of industries, including communications, construction, entertainment, and finance. Ms. Nutter's experience includes:

  • Advising clients on...

310-557-9518
Associate

With his common sense, practical approach to problem-solving, Vida Durazo helps represent employers in consumer class actions and in disputes involving whistleblowing, trade secret theft, restrictive covenants, and allegations of fraud and abuse. He also assists employers with their internal investigations and reviews and updates employee handbooks, policies, and procedures.

As a student at UCLA Law, Vida was actively involved with the Latinx law student community, served as the Sponsorship Editor of the UCLA Law Review, and worked as a research assistant.

Passionate...

310-557-9532
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