UPDATE:  At its June 9, 2021, special meeting, the Cal/OSHA Standards Board voted to withdraw the revisions to the Emergency Temporary Standards (ETS) that had been approved at its June 3rd meeting, and were set to go into effect on June 15th.  Instead, Cal/OSHA indicated that it will further consider the recent guidance from the CDC and the California Department of Public Health with respect to face coverings for fully vaccinated individuals.  For now, the original ETS that has been effective since November of 2020 will remain in place.  The Standards Board will convene to consider potential further revisions at a future meeting, perhaps as early as its next scheduled meeting on June 17th.   Stay tuned for further updates.

After several fits and starts, on June 3, 2021, the Cal/OSHA Occupational Safety & Health Standards Board finally passed revised Emergency Temporary Standards (ETS) that now take into account employee vaccination status and loosening restrictions from the Centers for Disease Control (CDC) and California’s elimination of the colored Tier system.  The revised ETS will go into effect on June 15, 2021 and creates additional employer obligations beginning on July 31, 2021.  The Cal/OSHA Standards Board has indicated that it will convene a subcommittee to consider further revisions in the coming months.

Sheppard Mullin previously described the draft ETS revisions in an earlier blog entry, which can be found here.  The draft ETS revisions were further changed in the lead-up to the June 3, 2021 meeting.  Those revisions are summarized below.

New Provisions Effective June 15, 2021:

While many provisions, including face coverings, mechanical and engineering controls, training and investigation requirements, etc., remain in effect even under the new ETS, several notable changes have been made, including:

– Limiting the definition of an “exposed group” for purposes of testing and outbreak requirements (the broader “worksite” definition will still apply for notification purposes).

– Including “outdoor mega events” (which are defined as events over 10,000 participants or spectators outdoors) in the ETS with mostly the same restrictions and requirements as those in effect for indoor workplaces.

– Removing the obligation to test close contacts of COVID-19 cases for any close contacts who are fully vaccinated or who have recently recovered from COVID-19, assuming those close contacts do not develop symptoms.

– Fully vaccinated employees, or those who have recently recovered from COVID-19, need not quarantine after close contact, so long as they remain symptom-free.

– Requiring trainings to include information on the effectiveness and safety of COVID-19 vaccinations, as well as on the proper use and fit of respirators such as N95s.

– Requiring either six feet of physical distancing between employees (unless employees are properly wearing respirators or in other limited circumstances) or if physical distancing is not feasible, providing non-fully vaccinated employees with respirators for voluntary use.  These physical distancing requirements will only be in effect through July 31, 2021.

– Employees no longer need to wear face coverings when together in a room if all persons in the room are fully vaccinated and symptom-free, or if fully vaccinated employees are outdoors and symptom-free.  Non-fully vaccinated employees who cannot wear a face covering (a mask, not a respirator) due to certain physical or mental conditions, or due to the requirement of the specific task being performed by the employee, and who are not wearing a less-restrictive alternative (i.e., a shield with a bottom drape), must be tested weekly for COVID-19 at no cost to the employee.

– Employees who ride in a vehicle with another person for 15 minutes or more, who are not fully vaccinated, must be provided with respirators for voluntary use no later than June 30, 2021.

– Until July 31, 2021, employees at fixed work stations must be provided cleanable partitions if physical distancing is not possible, unless those employees are provided respirators for voluntary use.

– All non-fully vaccinated employees showing symptoms of COVID-19 must be provided with testing during their paid time and at no cost to the employee.

– During “outbreaks” or “major outbreaks,” fully vaccinated employees or those who have recently recovered from COVID-19 are no longer subject to the weekly or twice-weekly testing requirements, so long as they remain symptom-free.

– In the event of an outbreak, employees in the exposed group who are not wearing respirators must be separated from others by at least six feet.  Until July 31, 2021, non-fully vaccinated employees in exposed groups indoors or in outdoor mega events must be provided with respirators for voluntary use.  Note that effective July 31, 2021, all employers (not just those with employees working indoors or at outdoor mega events) will be required to provide respirators during outbreaks.

New Provisions Effective July 31, 2021:

Effective July 31st, Cal/OSHA has mandated a new and significant obligation on employers.  On this date, employers must provide respirators, such as N95s, to all non-fully vaccinated employees working indoors or at outdoor mega events for voluntary use.  Public comment presented at the June 3rd meeting raised issues ranging from the cost burden on employers associated with obtaining sufficient quantities of respirators, to the lingering and real supply chain issues, to the difficulties in ensuring proper fit and use by employees and employers not familiar with respirator use and associated obligations.  Cal/OSHA may issue further clarifications on this point, although it is unclear when and to what extent it will do so.

These updates, while helpful, still place significant obligations on California employers, and are particularly jarring when contrasted against the near elimination of COVID-19 restrictions by the CDC and the California Department of Public Health.  Furthermore, employers must now directly confront the employee vaccination question, to determine whether and when the exceptions to these obligations may be used.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size-fits-all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.