Emergency Temporary Standards Better Align with CDC and CDPH Guidelines

The California Occupational Safety and Health Standards Board voted Thursday to bring its COVID-19 workplace regulations (known as Emergency Temporary Standards, or ETS) into better alignment with Centers for Disease Control and Prevention and California Department of Public Health guidance. Gov. Gavin Newsom subsequently issued an executive order so that the revised ETS could take effect immediately.

Among the most widely anticipated changes from Cal/OSHA are those regarding face coverings in the workplace. CDPH requirements dictate those indoor settings where face coverings are required regardless of vaccination status (e.g. public transit, health care facilities, etc.). In other workplaces, under the revised ETS, fully vaccinated workers may work without a face covering except in situations involving an outbreak. Unvaccinated workers will still need to wear face coverings indoors (unless they are alone in a room or are actively eating or drinking), in shared vehicles and outdoors where physical distancing cannot be maintained.

On request, employers are required to provide N95 masks or respirators to unvaccinated employees working indoors or in vehicles. The related FAQs confirm that employers can either stock N95 masks or poll workers as to their desired need before purchasing masks. Employers are also required to make testing available at no cost and on paid time to:

1. any symptomatic unvaccinated employees, regardless of exposure,
2. any unvaccinated employees who have been exposed in the workplace,
3. all symptomatic employees who have been exposed and
4. all employees in a major outbreak situation.

Finally, subject to certain exceptions, the revised ETS also eliminates physical distancing and barrier requirements regardless of vaccination status.

Given the many distinctions in the revised ETS between vaccinated and unvaccinated workers, employers will need to either obtain documentation about employees’ vaccination status or treat all workers as unvaccinated (and thus subject to the stricter requirements). The revised ETS does not specify a particular method of documenting vaccine status, but the related FAQ describes three acceptable options for employers:

• 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.

Private employers must also comply with any applicable privacy requirements (such as the California Consumer Privacy Act), and all employers must maintain the confidentiality of any vaccination records or attestations obtained.

Finally, several portions of the original ETS remain in effect. In particular, employers must:

• Update and maintain an effective written COVID-19 Prevention Program that includes training and instruction to employees about the plan and their rights under the revised ETS;
• Exclude employees subject to quarantine and comply with pay requirements and
• Notify employees of exposures and close contacts, and notify public health departments of outbreaks.

Employers are strongly urged to consult legal counsel as they navigate implementation of these new standards and requirements.

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