On June 17^th, the Cal/OSHA Standards Board voted to approve the revised Covid-19 Emergency Temporary Standards (ETS). Minutes after approval, California Governor Gavin Newsom issued Executive Order No. N-09-21, bypassing the usual 10-day approval process by the Office of Administrative Law (OAL) for emergency regulations and instead making the new ETS effective immediately.

Below are the key provisions that employers need to know about:

Face Coverings

Face covering guidelines now align closely with California Department of Public Health (CDPH) and Centers for Disease Control and Prevention (CDC) guidance.

• Employees who are “fully vaccinated” will no longer need to wear face coverings.
• Employers must provide face coverings and ensure they are worn by employees who are not fully vaccinated when indoors or in vehicles with other.
• Face coverings are no longer required outdoors, regardless of vaccination status.
• Limited face covering exemptions apply for those who are not fully vaccinated such as while eating and/or drinking or if the employee is alone in a building or vehicle.
• Employees can request face coverings from the employer at no cost and can wear them at work, regardless of vaccination status, without fear of retaliation.
• N95 respirators are only required to be provided for voluntary use to unvaccinated employees “upon request,” and must be made available to those employees as soon as possible.

CDPH guidance still requires face coverings to be used in the following settings regardless of vaccination status:

• Public transit and transportation hubs;
• K-12 educational facilities, childcare facilities and other youth settings;
• Healthcare settings* including long-term care facilities;
• Correctional facilities and detention centers; and
• Shelters such as homeless shelters, emergency shelters ;and cooling centers.

*CDPH points to the CDC definition of healthcare settings: “Healthcare settings refers to places where healthcare is delivered and includes, but is not limited to, acute care facilities, long term acute care facilities, inpatient rehabilitation facilities, nursing homes and assisted living facilities, home healthcare, vehicles where healthcare is delivered (e.g., mobile clinics), and outpatient facilities, such as dialysis centers, physician offices, and others.”

Documentation and Vaccines

New language says that the employer must have “documented” that the employee is fully vaccinated.

Acceptable options include:

• Employees provide proof of vaccination (vaccine card, image of vaccine card or healthcare document showing vaccination status) and employers maintain a copy.
• Employees provide proof of vaccination (examples above) and employer maintains a record of the employees who presented proof, but not the vaccine record itself.
• Employees self-attest to vaccination status and the employer maintains a record of who self-attests.

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.

Physical Distancing

Physical distancing and barrier requirements are eliminated, except in the event of a COVID-19 outbreak, or if an employer chooses to voluntarily maintain them.

Respirators

One of the most anticipated revisions of the ETS was regarding the requirement for employers to provide respirators to employees due to the likelihood of supply issues. “Respirators” generally refers to N95 filtering facemasks. Respirators must be approved by the National Institute for Occupational Safety and Health (NIOSH).

Under the new ETS, respirators only need to be provided under certain conditions:

• For voluntary use to unvaccinated employees upon request.
• In a “Regular” outbreak, must be offered for voluntary use to all employees in the exposed group.
• In a major outbreak, must be offered to all employees in the exposed group regardless of vaccination status.
• For voluntary use to unvaccinated employees using employer-provided transportation, upon request.

Cal/OSHA has stated they are not citing employers who make a good faith estimate and effort to provide respirators as soon as possible to employees who request them.

Testing

Beginning immediately, employers must make testing available to employees with symptoms who are not fully vaccinated – at no cost and during employees’ paid hours.

After one COVID-19 case in the workplace, testing must be made available to all employees who had “close contact” with the case.

Employers do not need to provide testing to:

• Fully vaccinated employees
• Employees who were previously COVID-19 cases that have since returned to work and have remained symptom-free for 90 days after initial onset of symptoms or after first positive test if never developed symptoms. (Considered as “natural immunity” but no additional guidance in how this can be determined if the previous case happened outside of employment.)
  • Note: “natural immunity” is not enough to exempt an employee from face coverings – must be documented as fully vaccinated to lift that particular requirement.

Outbreaks

The revised ETS requires employers to implement more protective requirements if an outbreak occurs in a workplace.

In the event of a “regular” outbreak, which is defined as three or more employee COVID-19 cases within 14 days:

• Employees in the exposed group must wear face coverings
• Employers must notify all employees in the exposed group of their right to request a respirator
• Employers must “evaluate” the need for use of physical distancing or barriers
• Employers must use MERV-13 or higher filters for their ventilation system if compatible

In the event of a “major” outbreak, which is defined as 20 or more employee COVID-19 cases within 30 days, regular outbreak requirements generally apply plus:

• Testing must be provided regardless of vaccination status
• Employers must provide respirators for voluntary use and determine whether or not there is need for a respiratory protection program
• Employers must implement physical distancing
• Employers must install barriers at work stations where physical distancing can not be maintained at all times

A “major” outbreak ends when there are fewer than three cases in the exposed group in a 14 day period.

Notice Requirements

Employers are required to provide notice to employees within one business day of the time the employer knew or should have known of a COVID-19 case.

• Must be written
• Must be provided to “all employees at the worksite during the high risk exposure period”
• May use personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day.
• Verbal follow-up required 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”

Exclusion

Employers are required to exclude employees from the workplace who have a COVID-19 case or had a close contact. Exemptions are made for:

• Fully vaccinated employees
• Employees who can be considered as having “natural immunity” as described above.

For employees excluded from the workplace employers are required to continue to “maintain an employee’s earnings, wages, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.”

The new guidelines explicitly state that if the employer determines that an exemption from exclusion pay applies, the employer shall inform the employee of the denial and applicable exemption.

Next Steps for Employers

• Review Cal/OSHA’s amended ETS and updated FAQs.
• Review your required Written COVID-19 Prevention Program (WCPP), notices, and any other policies that need to be modified.
• Review the vaccine considerations and determine how you will handle documenting vaccination status.
• Stock up on N95 respirators.

Compliance

Employers are expected to implement the revised ETS as soon as possible. Cal/OSHA language requires employers to “implement or retain alternative controls to ensure the health of employees,” and has stated that if an employer is continuing to comply with the November ETS while implementing the revisions, Cal/OSHA does not intend to cite the employer.