Cal/OSHA Revised Emergency Temporary Standards
- By: Gretchen Dugan
On June 17, 2021, Cal/OSHA implemented revised emergency temporary standards for COVID-19 prevention. These orders were put into effect immediately in accordance with Governor Newsom’s Executive Order N-09-21, and have been filed with the Secretary of State by the Office of Administrative Law.
The newly adopted emergency temporary standards apply to all employees and places of employment, with the exception of work locations with one employee who has no contact with other persons, employees working from home, employees teleworking from a location of the employee’s choice, which is not under the control of the employer, and employees with occupational exposure as defined by section 5199.
The revisions align with the latest guidance form the California Department of Public Health – based on guidelines issued by the CDC on face coverings and eliminate physical distancing requirements, except for certain employees during outbreaks.
The shorthand version of the changes is as follows:
- Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
- No face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers should be trained on CDPH recommendations for outdoor use of face coverings.
- Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status. There are some settings where CDPH requires face coverings regardless of vaccination status. In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
- Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request.
- Employers may not retaliate against employees from wearing face coverings.
- No physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
- Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees).
- Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees).
- No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
- Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations
- Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems
What Stayed the Same?
Some requirements from the November 2020 Emergency Temporary Standards remain in effect, including:
- An effective written COVID-19 Prevention Program.
- Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
- Providing notification to public health departments of outbreaks.
- Providing notification to employees of exposure and close contacts.
- Requirements to offer testing after potential exposures.
- Requirements for responding to COVID-19 cases and outbreaks.
- Quarantine and exclusion pay requirements.
- Basic prevention requirements for employer-provided housing and transportation.
What About Respirators?
It is important to note that employers must provide respirators in two scenarios: (1) to any unvaccinated employee who works with others indoors or in a vehicle and who requests one and (2) where there is a major outbreak, to any employees in the exposed group for voluntary use. The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal,” or fit.
Employers must be able to provide the respirator upon request. Initially, an employer may either stock respirators and offer them to employees or may poll workers to determine which employees wish to be provided a respirator before obtaining them. However, once an employer has established that it has employees who wish to wear respirators, it should have enough on hand of the correct size and type to fulfill reasonably foreseeable requests upon demand. If an employee prefers to select and purchase their own respirator, an employer may permit this alternative, as long as the employer reimburses the employee in a timely manner.
In a major outbreak, respirators must be offered to employees regardless of vaccination status and without waiting for a request from the employee. The employer must offer respirators immediately upon determining a major outbreak is underway.
An employer is under a continuing obligation to provide respirators to eligible unvaccinated employees at any time they communicate to the employer their desire to wear one.
Do We Document Vaccination Status?
Vaccination status must be documented. The proposed revised ETS does not specify a particular method. The employer must record the vaccination status for any employee not wearing a face covering indoors and this record must be kept confidential. Acceptable options include:
- Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
- Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
- Employees self-attest to vaccination status and employer maintains a record of who self-attests.
Nothing in the proposed revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.
As mentioned above, these changes went into immediate effect as of June 17, 2021. The Department of Industrial Relations has a list of vendors who report available supplies of N95 Disposable Respirators and we have included it here for your reference. https://www.dir.ca.gov/dosh/wildfire/List-of-N95-Vendors.pdf
As always, if you have specific questions we recommend you seek advice from your legal counsel.