June 11 Proposed Revised Cal/OSHA COVID-19 Emergency Temporary Standards

On June 11, the California Occupational Safety and Health Standards Board (the “Board”) proposed new revisions to the Cal/OSHA COVID Emergency Temporary Standards (ETS), after withdrawing the version previously approved on June 3. The June 11 version of the ETS was drafted to incorporate the latest public health guidance and is expected to be approved at the next regular meeting on June 17 which would mean that the earliest it would take effect is June 28. However, at a recent news conference Governor Newsom indicated that if the Board approves the revised ETS on June 17 he will issue an executive order that will allow the ETS to take effect immediately upon Board approval.

Under the current ETS, which remains in effect for now, 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 June 11 revisions to the ETS include numerous new and revised requirements for employers. Detailed FAQs will be forthcoming. This update summarizes some of the more significant changes.

Face Coverings No Longer Required for Fully Vaccinated Employees Indoors—Employees who are fully vaccinated are not required to wear face coverings indoors. Employees who are NOT fully vaccinated must wear face coverings when indoors or in vehicles, except in certain circumstances (when alone in a room, while eating or drinking and at least 6 feet away from another person, when wearing a respirator, etc.).  Employers must still provide face coverings to employees upon request, regardless of vaccination status.

Physical Distancing No Longer Required for Fully Vaccinated Employees or Employees Wearing Face Coverings—Employees who are fully vaccinated or wearing a face covering are not required to physically distance from other persons.

Respirators Must Be Provided for Voluntary Use by Employees Not Fully Vaccinated—Upon request, employers must provide respirators to employees not fully vaccinated for their voluntary use. When providing respirators, employers must ensure employees are provided with respirators that fit.

COVID-Testing for Employees Not Fully Vaccinated—Employers must provide free COVID-19 testing during paid time to employees with COVID-19 symptoms who are not fully vaccinated.

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, or for person fully vaccinated outside the US, be listed for emergency use by the World Health Organization. The ETS does 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.

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 each time a respirator is worn, and the fact that facial hair interferes with a seal.
  • 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.
    • The conditions under which face coverings must be worn at the workplace
    • Face coverings are additionally recommended outdoors for those not fully vaccinated if six feet of distance cannot be maintained.
    • Employees can request face coverings from the employer at no cost to the employee and can wear them at work, regardless of vaccination status, without fear of retaliation.
  • 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.

Employers Not Required to Exclude Asymptomatic Fully 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. Employees 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.