CAL/OSHA UPDATES EMERGENCY TEMPORARY STANDARDS

VACCINATION STATUS & DOCUMENTATION

• Employers may inquire as to the vaccination status of employees.

• Employees can refuse to disclose their vaccination status – and they must be treated as if they were “unvaccinated”.

• Employers must document their employees’ vaccinated status to ensure that they are “fully vaccinated” to permit the relaxed rules to apply.

• “Fully vaccinated” means 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 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).

•  While no specific documentation or proof was defined in the ETS, Cal/OSHA identified the following options for employees and employers:

1. 1. Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy;
   2. Employees show proof of vaccination to the employer, similar to the way an employee may show identification for I-9 purposes, and the employer maintains a record (e.g., a log) of the employees who presented proof, but not the vaccine record itself; or
   3. Employees self-attest to vaccination status and employer maintains a record of who self-attests.

• Whatever method the employer chooses to accept as proof of vaccination, the employer must make a record of vaccination status and keep such records confidential.

• If an employee refuses to disclose vaccination status, the employer must treat that employee as unvaccinated and must not discriminate against them. As with all employees’ personal health information, the vaccine status must be kept confidential and filed in the employee’s separate medical file.

PHYSICAL DISTANCING

• Physical distancing and barriers are no longer required

• Exception: If there is an “outbreak” (3 or more cases) employer must evaluate if it is necessary to implement physical distancing or barriers; if there is a “major COVID-19 outbreak “ (20 or more COVID-19 cases in 30 days) must implement physical distancing and barriers.

• Employers may continue to voluntarily impose physical distance measures in the workplace, including barriers or shields.

COVID-19 TESTING FOR EMPLOYEES

• Employers will need to provide testing during paid working time to all employees who are not fully vaccinated and who are symptomatic, regardless of any potential workplace exposure. Testing must be available during the employees’ scheduled work hours.

• Employers will not need to provide testing to fully vaccinated or naturally immune employees who are part of an exposed group in an “outbreak”, or who have had a close contact at work with a COVID-19 case, unless they have symptoms.
  • Employers must provide testing for all employees in an exposed group during “major” outbreaks, regardless of vaccination or symptom status.

EXCLUSION OF EXPOSED EMPLOYEES & EXCLUSION PAY

• Exclusion from Work: Fully vaccinated employees do not need to be tested or quarantined after close contact with COVID-19 cases unless they have symptoms.

• Exclusion Pay:  Employees must be paid their “regular rate of pay” by the next regular pay day for exclusion pay.  Employees may bring a wage claim to recover unpaid “continued earnings” when excluded from the workplace.

NOTICE REQUIREMENTS

• Within one business day of the time the employer knew or should have known of a COVID-19 case, the employer shall give written notice in a form readily understandable by employees, that people at the worksite may have been exposed to COVID-19.

• The notice shall be written in a way that does not reveal any personal identifying information of the COVID-19 case.

• Written notice may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending.

• The notice shall include the disinfection plan required by Labor Code section 6409.6(a)(4).

• The notice must be sent to all employees at the worksite during the high-risk exposure period.

• If the employer should reasonably know that an employee has not received the notice or has limited literacy in the language used in the notice, the employer shall provide verbal notice, as soon as practicable, in a language understandable by the employee.

• Independent contractors and other employers at the worksite during the high-risk exposure period must also be provided notice.

• Within one business day of the time the employer knew or should have known of the COVID-19 case, the employer shall provide notice to the authorized representative of any employee at the worksite during the high-risk exposure period.