On June 17, 2021, the Occupational Safety and Health Standards Board (“Cal/OSHA”) voted to adopt revised COVID-19 Prevention Emergency Temporary Standards (“ETS”), that reflect the state’s latest COVID-19 Public Health Order. In an effort to accelerate the adoption process, Governor Gavin Newsom signed Executive Order N-09-21, allowing for Cal/OSHA’s ETS revisions to take effect immediately without the normal ten-day review period by the Office of Administrative Law. The revised ETS regulations make the following changes:
Important Definitions
“Fully vaccinated” an employee is deemed “fully vaccinated” when an 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 (U.S. Food and Drug Administration) approved, have an emergency use authorization from the FDA, or, for individuals fully vaccinated outside the United States, be listed for emergency use by the World Health Organization.
“Face covering” the revised ETS refines the definition of a sufficient face covering to include only a medical, surgical, or two-fabric layer mask, or respirator (e.g., N95 mask) and excludes certain cloth masks such as a scarf, ski mask, balaclava, bandana, turtleneck, collar, or a single layer of fabric.
“Close contact” the previous ETS used the term “potential exposure” which has been replaced with the term “close contact.” “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. This definition applies regardless of the use of face coverings. Additionally, the revised ETS exempts employees from being considered a “close contact” if they were wearing a respirator whenever they were within six feet of the COVID-19 case during the high-risk exposure period.
“Exposed Group” under the prior version of the ETS, employers had to offer weekly testing to employees at an “exposed worksite.” The revisions to the ETS eliminate the term “exposed worksite” and replace it with the term “exposed group.” An “exposed group” would include all individuals present in a work location, work area, or common area where a COVID-19 case was present during the high-risk exposure period, but does not include:
- Areas where people pass through without congregating while everyone is wearing face coverings;
- If the COVID-19 case was part of a distinct group of employees that was not present at the workplace at the same time as other employees (i.e., shifts that do not overlap); or
- If the COVID-19 case was in a work area for less than 15 minutes during the high-risk exposure period and all persons in the area were wearing face coverings.
“Worksite” means the building, store, facility, agricultural field, or other location where a COVID-19 case was present during the high-risk exposure period. It does not apply to buildings, floors, or other locations of the employer that a COVID-19 case did not enter. The term “worksite” is essential in determining who is subject to the notice requirements discussed below.
“Outbreak” an outbreak occurs when three or more employee COVID-19 cases in an “exposed group” visited the workplace during their high-risk exposure period at any time during in an exposed workplace at any time during a 14-day period.
“Major outbreak” occurs if 20 or more employee COVID-19 cases in an “exposed group” visited the workplace during their high-risk exposure period at any time during a 30-day period.
Face Coverings
Face coverings are no longer required for fully vaccinated employees while indoors, except during outbreaks or when required by the Centers for Disease Control and California Department of Public Health (“CDPH”).
Unless alone in a room or vehicle, eating or drinking six feet apart and outside air has been maximized, or when the job duties make it infeasible or hazardous to do so, all unvaccinated employees must continue to wear face coverings while indoors or in a vehicle with more than one person.
There are no face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though employees must be trained on CDPH recommendations for outdoor use of face coverings.
In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
Documenting Vaccination Status
Employers must document the vaccination status of employees who want to work without face coverings indoors. Such documentation must be kept confidential by the employer.
The revised ETS does not specify a particular method for documenting an employee’s vaccination status. However, Cal/OSHA has issued guidance stating that acceptable documentation methods include:
- Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and the 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 the employer maintains a record of who self-attests.
The revised ETS does not require employees to submit proof of vaccination, nor does it deny an employer the right to require all employees to wear a face covering instead of having a vaccination documentation process.
Employees have the right to decline to state if they are fully 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.
Respirators
Employers must provide respirators to any unvaccinated employee who works indoors or in a vehicle with more than one person, upon the employee’s request and as soon as possible. Therefore, employers should have enough respirators readily on hand for voluntary use.
Whenever the employer provides respirators to its employees for voluntary use, it must also encourage the use of respirators, ensure employees are provided a respirator of the correct size, as well as train the employee on how to properly wear the respirator, perform a seal check according to the manufacturer’s instructions each time a respirator is worn, and the fact that facial hair interferes with a seal.
In the event that an employer runs out of respirators, the employer will not be cited by Cal/OSHA if the employer made a good faith estimate and effort to provide sufficient respirators as soon as possible upon an employee’s request. In such a case, the employer should immediately order more respirators. Cal/OSHA provides a non-exhaustive list of vendors that sell N95 respirators in large quantities here.
Physical Distancing
The ETS revisions eliminate all physical distancing and barrier requirements, regardless of employee vaccination status, except for locations in which unvaccinated employees eat and drink. However, employers are expected to continue assessing workplace hazards and implementing controls, such as physical distancing and barriers, to prevent transmission.
Notice to Employees
Within one business day of learning of a COVID-19 case in the workplace, employers must now give all employees at the worksite during the high-risk exposure period written notice, in a form readily understandable by all employees, that the worksite may have been exposed to COVID-19. Such written notice may be provided via personal service, email or text, so long as it can be reasonably anticipated to be received by the employee within one business day of sending, and it must include the employer’s disinfection plan.
If an employer has reason to believe that an employee has not received the notice, or has limited literacy in the language, the employer is required to provide verbal notice in a language understandable by the employee.
During this time, the employer must also provide notice to the authorized representative (e.g., union) of any employee at the worksite during the high-risk exposure period.
Exclusion and Returning to Work Criteria
All employees who test positive for COVID-19 and employees who have had close contact with a COVID-19 case must be excluded from the workplace until the return to work requirements in the ETS are met, except for:
- Employees who were fully vaccinated before the close contact and have no symptoms, and
- Employees who recovered from COVID-19 and remained symptom-free within 90 days of the close contact.
Employees who test positive for COVID-19 must not return to work until:
- At least 24 hours have passed since a fever has resolved without the use of fever-reducing medications,
- COVID-19 symptoms have improved, and
- At least ten days have passed since COVID-19 symptoms first appeared.
Employees who test positive for COVID-19 but never develop symptoms must not return to work until a minimum of ten days have passed since the date of specimen collection of their first positive COVID-19 test. Employees who have had close contact with a COVID-19 case but never develop COVID-19 symptoms may return to work when ten days have passed since the last known close contact.
An employee who develops symptoms after close contact with a COVID-19 case, cannot return to work until they:
- Test negative for COVID-19 using a polymerase chain reaction COVID-19 test, with a specimen taken after the onset symptoms,
- At least 10 days have passed since the last known close contact, and
- The employee is symptom-free for at least 24 hours without using fever-reducing medications.
Exclusion Pay
COVID-19 cases and close contacts excluded from the workplace under the ETS are entitled to earnings and benefits continuation unless they are receiving disability payments, workers’ compensation payments, or temporary disability payments, or if the employer can prove the close contact is not work-related.
The revised ETS eliminates the exception in the current ETS stating that exclusion pay is not required when the excluded employee is not “otherwise able and available to work.” Therefore, under the revised ETS, even if an excluded employee is not able to work, due to severe COVID-19 symptoms or otherwise, the revised ETS still requires that the employer provide exclusion pay unless they meet one of the other stated exceptions.
COVID-19 Testing
Employers must provide free testing during paid working time to all close contacts of a COVID-19 case in the workplace except those who are fully vaccinated and asymptomatic, and individuals who have recovered from COVID-19 in the past 90 days and are asymptomatic. Free testing during paid working time must also be offered to symptomatic unvaccinated employees (regardless of whether there is a known close contact).
Outbreaks
In an outbreak, employers no longer need to test employees in the exposed group on a weekly basis. Instead, employers must make testing available to employees on a weekly basis. Employees who were fully vaccinated prior to the implementation of the revised ETS and who remain asymptomatic, as well as employees who have had COVID-19 in the past 90 days do not need to be provided testing.
In an outbreak, it is up to the employer to evaluate the situation and determine whether to reinstate physical distancing and/or barriers. During an outbreak, employees must wear face coverings when indoors, or when outdoors and less than six feet from another person.
In a major outbreak, the employer is required to put up barriers, implement physical distancing, and immediately offer respirators to all employees in the exposed group, regardless of vaccination status and without waiting for an employee’s request.
November 2020 ETS Requirements That Remain in Place
California employers must continue to:
- Implement an effective, written COVID-19 Prevention Program;
- Provide effective training and instruction to employees on the employer’s prevention plan 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;
- Adhere to quarantine and exclusion pay requirements; and
- Implement basic prevention requirements for employer-provided housing and transportation.
Employers should implement the revised ETS as soon as possible. For those unable to implement the ETS immediately, the employer must implement or retain alternative controls to ensure the health of employees. If an employer is continuing to comply with the November ETS while implementing the revisions, Cal/OSHA will not cite the employer.
If you have any questions regarding the revised ETS, please contact the attorneys listed below or any of Kronick’s Labor and Employment Practice Group lawyers.
David Tyra
dtyra@kmtg.com | 916.321.4594