As has been widely reported, the Cal/OSHA’s Standards Board approved what was expected to be revisions to the November 2020 Emergency Temporary Standards (ETS) at the June 3rd meeting, with an expected effective date of June 14th.  In a surprise move Cal/OSHA withdrew the proposed revised ETS on June 10th to update the COVID-19 prevention requirements with the latest guidance.

Now a third attempt at approving a revised set of ETS is pending approval at the June 17th meeting.

In the meantime, Cal/OSHA has updated their FAQ’s in anticipation of the approval of the revised ETS.

CAL/OSHA POSTS UPDATED FAQ’S

You can access Cal/OSHA’s Frequently Asked Questions here.

A summary of the revisions are below:

What is Changing

Q:     What are the important changes in the June 11th proposed revised ETS?

A:     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.
    • Employers may allow fully vaccinated employees not to wear face coverings indoors but must document their 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 exceptions during an outbreak and major outbreak
    • No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
    • Employers must evaluate ventilation systems to maximize outdoor air and increase filtration’s efficiency and evaluate the use of additional air cleaning systems.

Q.  Are there requirements from the November 2020 ETS that will remain in place?

A: Yes, 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.
Physical Distancing

Q:  Are all physical distancing requirements in the proposed revised ETS gone?

A: The proposed revised ETS eliminates physical distancing and barrier requirements regardless of vaccination status, unless an exception applies:

    • Employers may implement additional protective measures than are required, including the use of physical distancing and barriers.
    • Employers must continue to assess workplace hazards and implement controls to prevent transmission of disease. There may be circumstances in which employers determine that physical distancing is necessary in their workplace regardless of vaccination status.
Respirators

Q:     What is an employer’s obligation to provide respirators?

A:     An employer must provide respirators (eg. N95’s) 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.

Q:     What does it mean to “provide respirators upon request”?

A:     An employer may stock respirators (N95’s) and offer them to employees or first determine which employees want a respirator before obtaining them. Employers should have enough to fulfill reasonably foreseeable requests upon demand.

    • If an employee prefers to select and purchase their own respirator, an employer may permit this alternative, if the employer reimburses the employee in timely manner.
    • In a major outbreak respirator 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 want to wear one.

Q.     How soon does a respirator need to be provided after an employee requests it?

A.   Employers should provide requested respirators to unvaccinated employees as soon as possible.

Q.   What if more employees request respirators than the employer anticipates and the employer runs out of respirators? Will Cal/OSHA cite the employer?

A.   Cal/OSHA will not cite employers who make a good faith estimate and effort to provide respirators as soon as possible to employees that request them.

Face Coverings

Q:    Who has to wear face coverings?

A:     Face coverings are required indoors and in vehicles for unvaccinated employees. Employees in certain indoor settings must wear a face covering regardless of vaccination status if required by CDPH order. As of June 15, those indoor settings where CDPH requires face coverings include public transit, K-12 educational facilities, health care and long-term care settings, correctional and detention facilities, and shelters (homeless or emergency shelters and cooling centers).

Though face coverings are not required outdoors, employers must communicate to workers that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained. Employers must provide face coverings to unvaccinated persons and make them available to vaccinated persons upon request.

Q:     Are there exceptions to wearing face coverings indoors?

A:   Yes. The most common exceptions for unvaccinated persons are:

    • When alone in a room or vehicle
    • When eating and drinking
    • When an accommodation is required
    • When job duties make a face covering infeasible or create a hazard
Vaccines

Q:     Is documentation required for a fully vaccinated employee to work without a face covering indoors?

A:     Yes. Vaccination status must be documented. The employer must have recorded 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.

Q:    What if the employee declines to state their vaccination status?

A:    An employee has the right to decline to state if they are vaccinated or not. In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.

Testing

Q:     What are the testing requirements of the proposed revised ETS?

A:    Employers must offer testing at no cost to employees during paid time to:

    • Symptomatic unvaccinated employees, regardless of whether there is a known exposure. This is a new requirement.
    • Unvaccinated employees after an exposure.
    • Vaccinated employees after an exposure if they develop symptoms.
    • Unvaccinated employees in an outbreak.
    • All employees in a major outbreak.

As the guidance issued by the state, local and federal agencies is regularly changing, as is the medical information known about COVID-19, this memo is provided solely as a reference tool to be used for informational purposes and should not be construed or interpreted as providing legal advice related to any specific case or cases.
This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2021.
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