On June 17, 2021, the Cal/OSHA Standards Board approved the revised COVID-19 Prevention Emergency Temporary Standards (ETS) which are more aligned with the CDC and the California Department of Public Health (“CDPH”) guidance regarding masks and social distancing.  Normally there is a 10 day approval period before the ETS would take effect, however, Governor Newsom signed an executive order yesterday stating the revised ETS is to take effect immediately, and likely will remain in place through January 2022.

The updates include changes to face coverings and physical distancing requirements along with many provisions relating to documenting employee’s vaccination status, providing approved respirators upon request for voluntary use, testing, and exclusion pay, among others.

More information on the revised COVID-19 Prevention Emergency Temporary Standards can be found in Cal/OSHA’s Frequently Asked Questions. here.

WHAT THE REVISED ETS REQUIRES IN THE WORKPLACE
WHO IS COVERED
The ETS does not apply to an employee working remotely from a location of their choice, which is not under the control of the employer.
FACE COVERINGS/RESPIRATORS
  • Fully vaccinated employees (who have provided documentation confirming their full vaccination status) are no longer required to wear face coverings, inside or outside, unless there is an outbreak, or they work in specific industries where CDPH requires them.
  • Employees can request face coverings from the employer at no cost and employers must allow employees to wear face coverings if they choose to wear them (regardless of vaccination status) without fear of retaliation.
  • Employees who are not vaccinated must continue to wear face coverings indoors and in vehicles while with others.
  • Exceptions: when alone in a room or vehicle, when eating and drinking, when an accommodation is required, and when job duties make a face covering infeasible or create a hazard.
  • Employers must provide N95 respirators to all employees who are not fully vaccinated when working indoors or in a vehicle, upon the employee’s request.
  • The respirator must be of the right size, and the employee must receive basic instruction on how to get a good “seal” or fit.
  • Employers should plan to have the inventory of N95 respirators on hand.
  • Employers must provide respirators for voluntary use to all employees, regardless of vaccination status, if a worksite is in a “major” outbreak status (i.e. more than 20 COVID-19 cases within 30 days in an exposed group).
NOTE: The California Department of Public Health (CDPH) face covering guidance (effective June 15) has been incorporated into the revised ETS, and requires individuals, regardless of vaccination status, to wear face coverings, in settings, such as public transit; indoors in K-12 schools, childcare, other youth settings; health care settings, including long term care facilities, among others. Click here for that guidance.
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. 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.
COVID-19 PREVENTION PROGRAM & TRAINING

Employers must continue to:

  • Maintain an updated written COVID-19 Prevention Program (“CPP”)
  • Provide effective training to employees on the CPP and their rights under the ETS
  •  Provide notification to public health departments of outbreaks
  • Provide notification to employees of exposure and close contacts
  • Offer testing after potential exposures
  • Respond to COVID-19 cases and outbreaks; and
  • Quarantine those persons who are symptomatic and
  • Provide exclusion pay where required.
DEFINITION CHANGES

The following definitions have either been added or changed in the revised ETS

  • “Close contact” means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the “high-risk exposure period” defined by this section. This definition applies regardless of the use of face coverings.
  • EXCEPTION: Employees have not had a close contact if they wore a respirator required by the employer and used in compliance with section 5144, whenever they were within six feet of the COVID-19 case during the high-risk exposure period.
  • “Fully-vaccinated” means the employer has documentation establishing that the employee received their full dose of the vaccine at least 14 days prior (either both doses of Pfizer or Moderna, or one does of the J&J vaccine).
  • “Exposed Group” (replaces “exposed workplace”) means all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period. A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas (with some exceptions such as a place where persons momentarily pass through while everyone is wearing face coverings, without congregating, is not a work location, working area, or a common area at work.
  •  “Respirator” means a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.

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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