Revised Cal/OSHA COVID-19 Emergency Temporary Standards

On June 3, after a marathon session, the California Occupational Safety and Health Standards Board (the “Board”) ultimately adopted revised COVID Emergency Temporary Standards (ETS), after an initial vote failed to approve the revisions. The Board agreed to approve the revisions after creating a subcommittee to work with Cal/OSHA on a new version of the ETS to address concerns of the Board members who initially voted to reject the revised ETS.

Under the current ETS, which remains in effect until June 15, employers are required to implement a COVID-19 prevention program that includes, but is not limited to:

  • Providing and requiring that employees wear face coverings indoors (except when alone in a closed area not frequented by others), and when outdoors and less than 6 feet away from another person, and when required by state and local health department orders.
  • Ensuring physical distancing of at least 6 feet at all times in the workplace, when possible.
  • Providing training and instruction on a variety of COVID-19 related topics.
  • Excluding from the workplace COVID-19 cases and employees with COVID-19 exposure and providing exclusion pay

The revisions to the ETS were made to more closely align with the state’s reopening on June 15. Without the revisions the current ETS would have remained in place until October.

The approved revised ETS include numerous new and revised requirements for employers. The revised ETS are expected to take effect June 15, 2021 and detailed FAQs will be forthcoming. This update summarizes some of the more significant changes.

Face Coverings—While employers are still required to provide acceptable face masks, and masks must generally still be worn by employees, the increase in vaccinations has led to some relaxation of the mask requirements. In particular, while indoors, employees can remove masks if ALL persons in the room are fully-vaccinated and do not have COVID-19 symptoms. If anyone in the room is NOT vaccinated or has COVID-19 symptoms, all employees must still wear masks. When outdoors, fully-vaccinated employees without Covid-19 symptoms do not need to wear a mask.  As noted below, effective July 31, 2021, employers must provide filtering face respirators (such as N95s) to employees who are not fully vaccinated.  Unvaccinated employees are not required to wear respirators, and may voluntarily choose to wear an acceptable face covering.

Documentation of Fully-Vaccinated Status—Employers must have documentation showing 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 or have an emergency use authorization from the FDA. The ETS do not provide information on what documentation must be kept, but based on comments made by Cal-OSHA during the June 3 public meeting, employers will not be required to actually gather copies of the physical vaccination cards. Observing the card and making a list was described as an acceptable alternative. Other alternatives may be discussed in forthcoming FAQs.

Physical Distancing—From the effective date of the revised ETS until July 31, 2021, physical distancing and partitions/barriers will not be required indoors or at outdoor mega events (events with over 10,000 attendees) IF employers provide respirators (e.g., N95 masks) to employees not fully-vaccinated for their voluntary use. After July 31, 2021, employers must provide respirators for voluntary use to all employees working indoors or at outdoor mega events who are not fully vaccinated. In the case of an outbreak, members of a COVID-19 exposed group of employees who are not wearing respirators required by the employer must follow specified physical distancing requirements.

Additional Training Requirements—Employers must include the following additional elements into the required training and prevention program:

  • How to ID COVID-19 Hazards: Employers must train employees how to participate in the identification and evaluation of COVID-19 hazards. 
  • When Respirators are provided for Voluntary Use: employers must provide respirators in the correct size and train employees:
    • How to properly wear the respirator provided; and
    • How to perform a seal check according to the manufacturer’s instruction.
  • Face Coverings:  In addition to training on the proper use of face coverings and the fact that face coverings are not respiratory protective equipment, employers must instruct employees that:
    • COVID-19 is an airborne disease; and
    • N95s and more protective respirators protect the users from airborne disease while face coverings primarily protect people around the user.
  • Vaccines:  Employers must train employees regarding the importance of vaccination against COVID-19. Information on the employer’s COVID-19 policies; how to access COVID-19 testing and vaccination; and the fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.

Changes to Workplace Exclusion Requirements for Vaccinated Employees who had Close Contact— Employees who were fully-vaccinated before a close contact and who do not have COVID-19 symptoms no longer have to be excluded from the workplace.

Exclusion Pay–The revised ETS clarifies that:

  • Employers must maintain wages and benefits for an employee excluded from the workplace as a COVID-19 case or close contact. Employers may use employer provided sick leave to the extent permitted by law. Wages are subject to wage payment obligations and must be at the employee’s regular rate of pay. Wages must be paid no later than the regular payday and any unpaid wages are subject to enforcement.
  • Exceptions to exclusion pay include
    • Where the employee received disability payments or was covered by workers’ compensation and received temporary disability; or
    • Where the employer demonstrates that the close contact is not work related.
  • If an exclusion pay exception applies, the employer must inform the employee of the denial and the applicable exception.