Significant Updates to Cal/OSHA’s Emergency Temporary Standards on the Horizon
Prompted by increased availability of vaccine appointments, and broad eligibility for all U.S. adults and teenagers, the federal Centers for Disease Control (CDC) and California’s Department of Public Health (CDPH) have loosened restrictions with respect to fully vaccinated individuals, defined as those who are two weeks past their final required vaccination dose (second dose of either Moderna or Pfizer-BioNTech, or single dose of the Johnson & Johnson/Janssen vaccine). Cal/OSHA now proposes to align itself with this guidance through proposed revisions to its Emergency Temporary Standards (“ETS”), which have been effective since November of 2020, just prior to the pandemic’s winter peak.
Many revisions clarify existing requirements, while others take into account the increased vaccination rates among employees and more relaxed guidance issued by different agencies. Notable proposed revisions include:
New Provisions Effective July 31, 2021:
The proposed revisions to the ETS will create new provisions beginning on July 31, 2021, regardless of the ultimate effective date of the revised ETS themselves, including:
Requiring employers to provide respirators to all unvaccinated employees working indoors.
Requiring employers to provide COVID-19 testing on paid time to any unvaccinated employees showing COVID-19 symptoms.
Prior to July 31, 2021, employers will still be required to enforce physical distancing requirements, except for employees wearing properly-fitted respirators and at locations where all employees are either fully vaccinated or require a reasonable accommodation under federal or state law, i.e., for medical or religious reasons. Employers must supply respirators for voluntary use by non-vaccinated employees and test those employees for COVID-19 at least once per week (at no loss of pay to or out-of-pocket cost for the employee).
Also prior to July 31, 2021, employers will be required to evaluate the need for respirators in compliance with 8 CCR 5144, the extensive California regulation governing respiratory protection programs. Employers should familiarize themselves with these requirements as even voluntary respirator use by employees comes with certain specific obligations.
Updates to Face Covering Requirements
Despite recent changes from the federal CDC, Cal/OSHA’s face covering requirements remain in effect, although additional exceptions have been enumerated. Specifically, masks need not be worn:
If all individuals in an enclosed room are fully vaccinated and are symptom-free.
If employees are fully vaccinated, are outdoors, and are symptom-free.
Exclusion Pay Clarifications
The proposed revisions clarify that Exclusion Pay is to be paid at the employee’s regular rate of pay no later than the pay period covering the period of time the employee was excluded, and is subject to all normal enforcement provisions for unpaid wages. If an employer decides that an employee is not eligible for Exclusion Pay, the employer must provide notice of the denial to the employee and note the applicable exception.
Through these changes, Cal/OSHA has clarified that Exclusion Pay will be enforced through all normal wage enforcement procedures, meaning that a failure to provide Exclusion Pay when required could trigger wage statement, waiting time, and PAGA penalties, for example. Employers should review all circumstances in which Exclusion Pay may be owed carefully, even before implementation of the revised ETS, to avoid potentially significant penalties.
Changes to Exclusion Requirements
Fully vaccinated employees and individuals who have had COVID-19 in the past 90 days no longer need to quarantine after close contact so long as they remain asymptomatic. The proposed revisions also provide more structured return-to-work criteria for employees excluded as close contacts, including permitting such employees to return after 10 days if they remain asymptomatic.
These loosened quarantine requirements allow employers to avoid Exclusion Pay requirements for fully vaccinated or recently COVID-19-positive individuals. Ideally, allowing more employees to remain at the worksite after close contact when they previously would have been excluded will address staffing shortages and impacts to production.
Updates to Definition of “Worksite” and “Exposed Group”
The proposed revisions clarify the definition of “worksite” and “exposed group” for purposes of counting outbreaks, sending notifications, and testing. An “exposed group” would include all individuals present in a work location, work area, or common area where a COVID-19 case was present, but does not include:
Areas where people pass through without congregating while everyone is wearing face coverings;
If the COVID-19 case was part of a distinct group of employees that was not present at the workplace at the same time as other employees (i.e., shifts that do not overlap); or
If the COVID-19 case was in a work area for less than 15 minutes during the high-risk exposure period and all persons in the area were wearing face coverings.
Employers no longer need to offer testing to exposed fully vaccinated individuals in the exposed group or those who have had COVID-19 in the past 90 days in the exposed group so long as they have no COVID-19 symptoms.
Cal/OSHA has maintained the broader definition of “worksite” for sending notifications of positive cases.
Updates for Outbreak and Major Outbreak Situations
In an outbreak situation, any employees in the exposed group who are not wearing respirators must be separated from others by six feet unless the employer can show that six feet of distance is not feasible. Employees at fixed work locations where physical distancing cannot be maintained at all times must have cleanable partitions installed.
Employees who were fully vaccinated prior to the implementation of the revised ETS and who remain asymptomatic, and employees who have had COVID-19 in the past 90 days are not subject to the weekly testing requirements otherwise mandated in an outbreak situation.
Before July 31, 2021, employees in an exposed group, working indoors, who are not fully vaccinated, must be provided with respirators.
Updates to Cal/OSHA’s Frequently Asked Questions
In addition to the potential revisions to the ETS, Cal/OSHA recently provided substantive updates to its Frequently Asked Questions in recognition of changing guidance with respect to fully vaccinated individuals, particularly with respect to the shortening or elimination of the quarantine period for fully vaccinated employees. Primarily, the updated FAQ now provides for exceptions from quarantine for fully vaccinated employees. In other words, employees who are close contacts of COVID-19 cases are now no longer obligated to quarantine for the county-mandated quarantine period of 10 or 14 days if: (1) they are fully vaccinated, (2) they themselves do not test positive, and (3) they remain asymptomatic.
Note that although the revised ETS have yet to go into effect, Cal/OSHA will enforce its current ETS in alignment with its published FAQs, so employers can likely safely permit fully vaccinated employees to remain at work after close contact exposure.
These changes, if and when implemented, will mean major changes for employers. Many provisions of the revised ETS implicate specific and detailed respiratory protection program regulations. Other provisions hinge on the vaccination status of employees, something employers are already grappling with when it comes to the question of whether to mandate or encourage vaccinations. The revised ETS may play into employers’ calculus with respect to that decision. The revised ETS may be yet another item to be taken into consideration when an employer is determining reasonable accommodations and undue burdens with respect to an employee who is unable to be vaccinated due to religious, disability-related, or other protected reasons.
Employers should prepare now for the likely implementation of the ETS, and consult with experienced employment counsel to ensure that these updates are properly reflected in the employers’ COVID-19 Prevention Programs, training documents, protocols, and practices.
The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.