The California Division of Occupational Safety and Health (Cal/OSHA) on May 28 released much-anticipated updated text for its proposed “Readoption” of COVID-19 Prevention Emergency Temporary Standards. Perhaps the biggest surprise was what Cal/OSHA did not change. Despite the Cal/OSHA Standards Board recently delaying passage for the stated purpose of aligning with the Centers for Disease Control and Prevention (CDC), the revised text did not make any changes to the proposed face-covering requirements. If the Standards Board adopts at a June 3 public meeting the revised text issued on May 28, fully vaccinated employees will only be allowed to not wear a face mask if they are outdoors and asymptomatic, if they are indoors in a room with other fully vaccinated individuals who are asymptomatic, or if other very limited exceptions apply.

This does not go as far as the CDC’s published new guidance, which allows for fully vaccinated persons to remove face masks in most indoor and outdoor settings, or the California Department of Public Health’s announcement that it will align its guidance with the CDC’s guidance, effective June 15, 2021. Fully vaccinated employees who are close contacts with a COVID-19 case would also not be required to quarantine if asymptomatic.

DEFINITION OF ‘FULLY VACCINATED’

Significantly, Cal/OSHA also did not change its definition of “fully vaccinated” employees. The definition requires that employers have “documentation” that the person received at least 14 days earlier the final dose of an FDA-authorized or FDA-approved vaccine. This means that employers must verify with “documentation” that employees at a worksite are fully vaccinated before those employees can benefit from the relaxed restrictions.

PHYSICAL DISTANCING AND MANDATORY COVID-19 TESTING

Cal/OSHA revised its physical distancing provisions such that employers will have two options: (1) all employees must be separated from others by at least six feet, except for employees wearing respirators per employer requirement, where feasible; or (2) all employees who are not fully vaccinated must be provided respirators for voluntary use. If adopted, the physical distancing requirements would expire on July 31, 2021, when employers would be required to provide respirators for all unvaccinated employees working indoors.

The proposed readoption also would require employers to immediately provide testing for symptomatic employees regardless of work-relatedness. The updated text would accelerate this requirement, which Cal/OSHA previously proposed to take effect July 31, 2021.

Morgan Lewis will issue a LawFlash describing the Readopted Emergency Temporary Standards in greater detail following the Standards Board’s June 3 meeting.

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