Question

I heard that Cal/OSHA updated its “Emergency Temporary Standards” on June 17 and that this is a big deal, but I don’t know the slightest thing about it. What’s the update?

Answer

This is a big deal because prior to this June 17 update, the Emergency Temporary Standards (or “ETS”) were lagging behind the new COVID-19 protocols set forth by the Centers for Disease Control (the “CDC”) and were in conflict with many of the California state reopening guidelines for vaccinated individuals. This update helps Cal/OSHA catch up. Still confused? If you’re not familiar with the ETS in general, then you’ll probably need some more context. We’re going to give you a little more background before jumping into the ETS as they stand as of today (date of publication is listed at the bottom of this Blawg post, FYI!).

Background on Emergency Temporary Standards

California Occupational Safety and Health Administration or “Cal/OSHA” is the agency in charge of protecting public health and safety through regulations related to hazards on the job in California workplaces. As part of these regulations, Cal/OSHA requires that qualifying businesses and organizations (which means most employers) create illness and injury prevention programs meant to help identify and eliminate danger before accidents and illnesses occur.

It’s important to note that Cal/OSHA requires employers to eliminate dangers in the workplace. As we’ve all learned throughout 2020, there is no surefire way to eliminate COVID-19, so Cal/OSHA has scrambled to adjust their requirements for employers during this time, in regard to COVID-19 specifically.

In late 2020, Cal/OSHA released the first of its COVID-19 Emergency Temporary Standards, which basically said that while there’s no way to absolutely ensure that COVID-19 could be eliminated, employers could still do a lot to minimize risk in the workplace. One facet of these ETS was that they required employers to ensure most workers (with some very limited exceptions) wear face coverings to prevent exposure in the workplace; it also required physical distancing and other types of risk controls.

The problem is, that as vaccines have become more and more available to the general public, these ETS did not keep up with the guidelines put forward by the CDC, which now say that fully vaccinated people can safely remove their masks indoors and do not have to physically distance themselves.

So here we are, in June 2021. California is officially “reopened” and some Californians are eager to get back to some sense of normal. As cases are dropping and vaccination is rising, the “emergency” part of ETS seems a lot less applicable, which was one big reason why there was a push for an update to the ETS. Well, now we actually have an update! So let’s dive into it, shall we?

June 17 Update on Emergency Temporary Standards

After two hours of public comment, the Cal/OSHA Standards Board voted in favor of updating the COVID-19 Emergency Temporary Standards. Normally, it would take a 10-day review period before these new standards could take effect, but  Governor Gavin Newsom signed an Executive Order, which means they are effective immediately. What does this mean for employers? Well, there are a few big topics you need to be aware of:

• Vaccination status. Previously, employers could ask employees to share their vaccination status without running afoul of the Americans with Disabilities Act (the “ADA”). This is still true under the update, however, the revised ETS actually require that employers gather and maintain information regarding employee vaccination, if employees will be taking advantage of some of the new “perks” offered to vaccinated people. Please note that although asking for this information is not considered a medical inquiry under the ADA, it is still employee health information and must be stored securely and confidentially. This should not be included in the personnel file, but rather, it should be kept in a separate medical file, which is only accessible on a need-to-know basis by supervisory employees. The revised ETS does not specify a particular method of verification, but any of the following options are acceptable:
  • • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and 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 employer maintains a record of who self-attests.

If any employee refuses to provide you with their vaccination status, the Department of Industrial Relations advises the following, “In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.” If you as the employer still feel uneasy or ill-equipped to manage vaccination verification, nothing prevents an employer from requiring all employees to wear a face covering, regardless of vaccination status, instead of having a documentation process. It might irk your employees though!

• Face coverings. Employers may allow fully vaccinated employees to forego wearing face coverings indoors, but must document their vaccination status. Unvaccinated employees will still be required to wear a face covering, unless any of the following exceptions apply:
  • • When alone in a room or vehicle;
    • When actively eating and drinking;
    • When an accommodation is required;
    • When job duties make a face covering infeasible or create a hazard;

Note: there are some settings where face coverings are required regardless of vaccination status, such as public transit settings (which are federally regulated). In the event of an “outbreak” (we’ll get to this in a moment), all employees must wear face coverings indoors and outdoors when six-foot physical distance cannot be maintained, regardless of vaccination status. And face coverings are not required outdoors (except during outbreaks), regardless of vaccination status, though employers must communicate to workers that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained. Employers must provide face coverings to unvaccinated persons and make them available to vaccinated persons upon request. Additionally, there are requirements around offering respirators to employees that request them, as well.

• Physical Distancing. There are no physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
  • • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak.
    • Employers must implement physical distancing and barriers during a major outbreak.
• Testing/Quarantining. Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases. However, employers must offer testing at no cost to employees during paid time to:
  • • Symptomatic unvaccinated employees, regardless of whether there is a known exposure;
    • Unvaccinated employees after an exposure;
    • Vaccinated employees after an exposure if they develop symptoms;
    • Unvaccinated employees in an outbreak; and
    • All employees in a major outbreak.
• Ventilation Requirements. Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems
• No Retaliation. Employers may not retaliate against employees for wearing face coverings. However, note the reverse: if an employee refuses to wear a mask where required under these revised ETS, the employee may be subject to discipline; these ETS do not prohibit appropriate discipline for insubordination.

Pause: What is an “Outbreak” Under Cal/OSHA Standards?

We’ve mentioned “outbreaks” a few times, so it’s important to clarify what is considered an outbreak or a major outbreak:

• An “outbreak” happens when there are 3 or more COVID-19 cases within a 14-day period in an exposed group of employees. All of these employees must live in separate households for it to be considered an outbreak; and
• A “major outbreak” happens when there are 20 or more COVID-19 cases within a 14-day period in an exposed group of employees. All of these employees must live in separate households for it to be considered an outbreak.

The revised ETS require employers to implement more protective requirements if an outbreak or major outbreak occurs in a workplace, so it’s important to take note of these numbers and to remain vigilant!

Also, Cal/OSHA has the option of proposing changes to the ETS one additional time, if necessary, which means if there is an uptick in COVID-19 cases in California again, these standards could revert to being more restrictive.

So, What HASN’T Changed?

There are quite a few aspects of the 2020 ETS that will remain unchanged. These include the requirements that employers:

• Maintain 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;
• Allow for quarantine and provide exclusion pay in certain scenarios; and
• Abide by basic prevention requirements for employer-provided housing and transportation.

Wrapping Everything Up….

If you as an employer feel like carrying on under the previous ETS, by all means! Nothing is standing in your way of requiring your employees to wear face coverings and social distance; the previous ETS are even more protective of employees, which is a good thing.

However, if you will be permitting fully vaccinated employees to enjoy the perks that go with vaccination status, start talking to your HR department or whoever your Head of People is and make sure you have a vaccination verification system in place, so that everything is handled consistently. You’ll also want to make sure you have the ability to compartmentalize and safeguard medical files from personnel files. And last, make sure you communicate these changes to your employees clearly! Any questions after reading this update? Send an email to bertie@inbetterwetrust.com to set up a free 30-minute consultation with our team.