Seyfarth Synopsis: On May 20, 2021, the California Occupational Safety & Health Standards Board (OSHSB) will consider changes to the COVID-19 Emergency Temporary Standard (ETS) Rules, and it just posted the changes it will consider. These potential changes are broad-ranging and affect employers’ requirements related to masking, social distancing, testing, exclusion, and more, especially with respect to vaccinated and unvaccinated employees.

Background

Last November, Cal/OSHA’s ETS went into effect. Now, amidst significant improvements to the state of the COVID-19 pandemic and increased scientific knowledge, the risk-benefit aspect of the current ETS has made compliance particularly burdensome and at times nonsensical, as subtly noted by California’s Governor and repeatedly adjusted in FAQs. Thankfully, however, Cal/OSHA has now published its proposed revisions to the ETS, which the OSHSB will consider at its May 20, 2021 meeting.

The proposed revisions are in many instances a significant move in the right direction, and would offer some much-needed relief to employers in certain areas. But of course, it wouldn’t be Cal/OSHA without at least some confusion and issues of practicality.

What Are The Most Notable Revisions?

  • Exemptions: Creating broad exemptions for workers who have been fully vaccinated with an FDA- approved or emergency use authorized (EUA) vaccine, and/or workers who have tested positive for COVID-19 within the past 90 days (i.e. naturally immunized workers).
    • Fully vaccinated or naturally immune workers would not need to be excluded from work after a close contact so long as they remain symptom-free.
    • Individuals who are actual COVID-19 cases, but were fully vaccinated before they become COVID-cases would not need to be excluded, so long as they remain symptom free and local public health rules permit them to remain at work.
    • Fully vaccinated workers would be exempt from maskingif everyone in the same room is fully vaccinated and asymptomatic, or if the fully vaccinated employees are working outside and asymptomatic.
    • Other exemptions, related to physical distancing, testing, and engineering controls specific to fully vaccinated persons and/or naturally immunized individuals are noted below in more detail.
  • Physical Distancing Requirement Changes
    • A July 31, 2021, sunset of the physical distancing requirements.
    • An immediate modification of the physical distancing requirement to require six feet of separation unless it is infeasible(as opposed to the current standard of impossible).
    • The physical distancing requirement would not applyto employees wearing respirators under a respiratory protection program, and locations where all employees are fully vaccinated (Note that if any employees in a location require a reasonable accommodation or exception to vaccination based under other legal protections, such as FEHA or the ADA, then the exemption from social distancing can still apply, but the employer must provide respirators for voluntary use to the unvaccinated workers, and test those employees for COVID-19 at least once per week during paid time and at no cost to the employees).
  • Employer Provided Testing: Requiring that employers make COVID-19 testing available at no cost during paid time to employees with COVID-19 symptoms who are not fully vaccinated, as of July 31, 2021.
    • The provision of testing requirement would apply regardless of whether the unvaccinated worker had close contact with a COVID-19 case.
    • On the flip side, employers would no longer need to offer COVID-19 testing to workplace close contacts if the potentially exposed employees were fully vaccinated or had natural immunity (previously infected within the prior 90 days).
  • Face Coverings: Refining the definition of “face covering” to exclude “a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric,” and specifying it must be a medical, surgical, or two fabric layer mask, or respirator—meaning many of the fancy masks that employees may have personally purchased and been using will no longer be sufficient to meet the safety standard.
  • Outbreak Testing: With respect to the highly controversial “outbreak testing” provision, eliminating the “exposed workplace” concept and shifting to an “exposed group” concept.
    • This would encompass all persons at a work location, working area, or a common area at work, where a COVID-19 case was present (except for short passing through while masked) at any time during the high-risk exposure period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.
    • Outbreak testing would kick in when there are three or more COVID-19 cases in an exposed group. Significantly, the proposed draft removes as a trigger for “outbreak testing” when the local public health department identifies the workplace as the location of an outbreak—which could eliminate the challenge many employers have faced with inconsistency in how local public health departments identify outbreaks.
  • Training Requirements: Adding as required training topics information on COVID-19 vaccinations, COVID-19 testing accessibility, and for employers who provide respirators for voluntary use, training on how to properly wear the respirator and how to perform a seal check. Additionally, employers would need to train employees that N95s and other respirators protect users from airborne diseases like COVID-19, as opposed to face coverings which primarily protect people around the user.
  • Close Contacts: Incorporating a “close contact” definition for purposes such as testing, exclusion, and contact tracing, and exempting from that definition employees who are wearing a respirator under a Cal/OSHA-compliant respiratory protection program.
  • Notifications: Changing and clarifying several of the requirements around COVID-19 notifications to align with AB 685, including, but not limited to, a requirement that COVID-19 notifications include the employer’s disinfection plan.
    • Notably, the revision would also provide an allowance for verbal notice of a COVID-19 case in the workplace if the employer has reason to know that an employee has not received the written notice. This is an important change for the many employers who have had difficulty complying with existing written notification requirements.
    • It also requires employers to notify the employee verbally in a language understandable by the employee, if the employer has reason to believe the employee has limited literacy in the language of the written notice.
  • Engineering Controls: Creating a July 31, 2021, sunset on the “cleanable solid partitions” requirement that currently applies when employees are assigned to work at work stations such as cash registers, desks, production lines, and other locations where physical distancing is not maintained at all times. Prior to the sunset, the requirement also would not apply if employees are wearing respirators under a respiratory protection program, fully vaccinated, or, for workers who require a reasonable accommodation or exception to vaccination, are provided respirators for voluntary use and tested for COVID-19 at least once per week.

What Else Do I Need to Know?

Remember that Cal/OSHA continues to update its interpretive guidance on the ETS via its Frequently Asked Questions page. One of the most significant recent developments is that as of May 5, 2021, Cal/OSHA has aligned itself with CDPH’s Public Health Recommendations for Fully Vaccinated People. Accordingly, fully vaccinated employees exposed to a COVID-19 case who remain asymptomatic need not be quarantined.

The full text of the proposed revision to the ETS can be found here. Trade associations and labor groups will have an opportunity to offer public comment at the Cal/OSHA Standards Board meeting on May 20, 2021. It’s likely the Standard Board will vote on the revisions on the same day. The revised standard would become effective as soon as approved by the State Office of Administrative Law.

Workplace Solutions

Remember to check in with your Seyfarth counselors regularly, as this is a rapidly developing area of law. If you need any assistance with your workplace safety planning, or have questions about requirements related to testing, quarantine, or how to pay workers that are out sick with COVID-19, please feel free to reach out to the authors of this post. Seyfarth can also assist with compliance counseling if you are considering implementing mandatory vaccination programs or creating incentives for your employees to be vaccinated.