Cal/OSHA Revises Emergency Temporary Standards

By Alexandra Saddik

On June 17, 2021, Cal/OSHA voted on new Emergency Temporary Standards (ETS). Governor Newsom also signed an executive order waiving the 10-day review period, which means that these new emergency temporary standards took effect immediately.

What Has Changed?

The purpose of the ETS revisions was to align the workplace requirements with California’s reopening requirements. The revisions made by Cal/OSHA include but are not limited to the following:

  • Face Coverings: The most significant—and long-awaited—change is that fully vaccinated employees are no longer required to wear face coverings when in close contact. Employers must provide face coverings to unvaccinated employees and “ensure that they are worn” when unvaccinated employees are anywhere indoors. Employers are also obligated to provide respirators to unvaccinated employees at their request. Vaccinated employees “may request face coverings from the employer at no cost to the employee” and wear a face covering in the workplace without fear of retaliation.
  • Close Contact: The definition of “close contact” now excludes employees who wore a respirator around the sick employee.
  • COVID-19 Testing: Employers are no longer required to provide COVID-19 testing to all exposed employees at no cost during working hours. Instead, employers need only provide COVID-19 testing in situations where the employee is not fully vaccinated and symptomatic.
  • Exclusion from the Workplace: Employees who: (1) are fully vaccinated and asymptomatic; or (2) have previously contracted COVID-19 and were either asymptomatic or did not exhibit symptoms for 90 days, no longer need to be excluded from the workplace.

What is the Next Step for Employers?

It is important to note that the ETS provides a floor for COVID-19 prevention and mitigations. Employers have the right to impose more restrictive measures if they feel doing so would ensure the safety of their employees. It is also important for employers to check local county requirements to determine whether there are workplace restrictions that go beyond what the ETS requires. In this situation, the most restrictive provision prevails.

Employers should determine what workplace policy works best for them based on the ETS, applicable local guidance, and their existing business model. In making this assessment, employers should be particularly mindful of ensuring that policies do not infringe on employee privacy or increase a risk of discrimination, harassment, and/or retaliation.

How Do Employers Comply with the ETS Face Covering Requirements?

Employers have one of two options for complying with the face covering requirements:

  • Inquire About Vaccination Status. Employers are allowed to ask for proof of vaccination under the Department of Fair Employment and Housing (DFEH) guidance on vaccinations. If an employer chooses to inquire about vaccination status, the employer must treat documentation of the vaccination status as confidential. Appropriate documentation includes but is not limited to a copy of the vaccine card, documents establishing vaccination status, or a self-attestation. If an employee fails to disclose vaccination status, then the employer should treat the employee as unvaccinated for the purposes of the ETS.
  • Avoid Asking About Vaccination Status. Employers following this option must assume all employees are unvaccinated and ensure face coverings are worn for all employees when indoors.

It is important to note that neither Cal/OSHA nor the DFEH provide guidance as to the risk level of each of these two options, nor do they protect the employer from an employee making a potential discrimination or invasion of privacy claim. It is important that employers (1) clearly document what policy is being implemented; and (2) apply that policy consistently across all employees to mitigate risks of potential lawsuits.

Is a Written COVID-19 Prevention Program (CPP) Still Required Under the ETS?

Employers are still required to have a written CPP in place. As such, employers should revise or draft CPPs to account for the above changes, and any additional restrictions the employer may choose to implement. The CPP should be made available to employees to ensure that employees are fully aware of what the new policies are.

Ferber Law is monitoring Cal/OSHA and other California state agencies for changes to the existing guidance and is prepared to assist with creating policies that work best for you.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.