Key Points

• Starting July 31, 2021, all employees who are not fully vaccinated shall be provided respirators for voluntary use.

• Exclusion pay is required even if an employee is not able to work.

• Employers should amend their COVID-19 Prevention Plans.

   

Introduction

On June 3, 2021, the Cal/OSHA Standards Board (Board) passed changes to the COVID-19 Emergency Temporary Standards (ETS). Initially, the Board voted 4-3 against the proposed ETS. Minutes later, the Board unexpectedly changed course and voted unanimously to adopt the revised regulations to avoid maintaining what it believed to be the much more onerous version of the ETS currently in place. The Board also voted to establish a subcommittee to work directly with Cal/OSHA to quickly draft a third version of the ETS to take into account "the availability of vaccines and low case rates across the state."

The Office of Administrative Law (OAL) now has ten calendar days to approve the amended ETS. The revisions, if approved, are expected to go into effect on or before June 15, 2021. The full ETS with the revisions can be accessed in this PDF.

The purpose of the amended ETA was to revise the ETS in light of the continued pace of vaccinations and revised state and federal guidance¹. Nevertheless, the revised ETS fails to align with the CDC and Governor Newsom's recommended plans to end mask-wearing and social distancing requirements for vaccinated individuals on June 15, 2021.

Notably, many elements of the existing ETS will stay in place, including the requirement to have a written COVID-19 Prevention Plan. Employers will also need to continue to identify and evaluate COVID-19 hazards, implement a screening process; conduct workplace-specific identification of areas, activities, processes that can potentially expose employees to COVID-19 hazards, and implement effective policies for correcting unsafe or unhealthy conditions, work practices, policies, and procedures.

Hanson Bridgett's June 9, 2021, Labor & Employment Mid-Year Seminar will address the revised ETS. If you have not already registered, RSVP to save your spot.

The Amended ETS

New Definitions

The amended ETS clarifies and adds terms:

"Fully-vaccinated" means that the employer has documentation showing that an employee received their full dose of the vaccine at least 14 days prior (either both doses of Pfizer or Moderna or one J&J dose). Vaccines must be FDA approved or have an emergency use authorization.

"COVID-19 exposure" is now "close contact" and refers to being within six feet of a COVID-19 case for a total of 15 minutes or more in any 24-hour period. This does not include if the employee is required to and wearing a respirator.

"Face covering" excludes a "scarf, ski mask, balaclava, bandana, turtleneck, collar, or a single layer of fabric."

"Exposed Group" is the new term for  "exposed workplace." The new exposed group definition only includes those cases where employee COVID-19 cases are present.

The amended ETS now provides:

1. For the purpose of determining the exposed group, a place where persons momentarily pass through while everyone is wearing face coverings, without congregating, is not a work location, working area, or a common area at work.
   
2. If the COVID-19 case was part of a distinct group of employees who are not present at the workplace at the same time as other employees, for instance, a work crew or shift that does not overlap with another work crew or shift, only employees within that distinct group are part of the exposed group.
   
3. If the COVID-19 case visited a work location, working area, or a common area at work for less than 15 minutes during the high-risk exposure period, and all persons were wearing face coverings at the time the COVID-19 case was present, other people at the work location, working area, or common area are not part of the exposed group."
   
   

"Outdoor Mega Event" means an event that includes over 10,000 participants or spectators outdoors and may include conventions, shows, outdoor nightclubs, concerts, sporting events, theme parks, fairs, festivals, large races, and parades.

New Testing Exception and New Verbal Notice Requirement

Under the current ETS, employers are required to offer free COVID-19 testing to employees during paid time when they have close contact in the workplace.Under the amended ETS, testing is not required after a close contact if: (1) the employee was fully vaccinated (two weeks from the last injection) before the close contact and does not have symptoms; and (2) for those employees who had COVID-19 and returned to the workplace and remain symptom-free, then testing is not required for the 90 days after the initial onset of symptoms, or for those without symptoms, for 90 days after their first positive COVID-19 test.

Additionally, under the current ETS, within one business day of the time the employer had actual or constructive knowledge of a COVID-19 case at the worksite, the employer must give written notice to all employees who were present at the worksite during the COVID-19 case's high exposure period, such that they may have been exposed. The amended ETS adds that "[i]f the employer should reasonably know that an employee has not received the notice, or has limited literacy in the language used in the notice, the employer shall provide verbal notice, as soon as practicable, in a language understandable by the employee."

Social Distancing, Face Coverings, and N95 Respirators

Cal/OSHA is not eliminating physical distancing and face-covering requirements for fully vaccinated individuals in indoor settings. Until July 31, 2021, all employees, including vaccinated employees, must continue to maintain a distance of six feet when working indoors or at Outdoor Mega Events unless the employee is required to wear and is wearing a respirator. After July 31, however, physical distancing will no longer be required, except during an outbreak.

Further, employers must still provide face coverings and ensure they are worn by all employees when employees are indoors or are outdoors and within six feet of other people, and in other situations, CDPH or any local health order may require.Employers cannot prevent an employee from wearing a face covering, even if not required to do so by law, unless doing so creates a safety hazard. Limited exceptions to the face-covering requirement include when an employee is alone in a room when all employees in a room are fully vaccinated and do not have COVID-19 symptoms, and while an employee is eating or drinking and physically distanced from other employees. Employees also need not wear face coverings if they are wearing respirators.

Starting July 31, 2021, all employees who are not fully vaccinated shall be provided N95 filtering respirators or other NIOSH approved respirators for voluntary use. As a result, employers must now comply with Title 8, Section 5144(c)(2), which has specific requirements for voluntary respirator use, such as providing certain information to users contained in Appendix D of Section 5144. Employers must similarly develop written procedures for employees to use respirators in the workplace that ensure employees' use of respirators does not pose a hazard and that respirators are used in a correct manner. The amended ETS requires that respirators must be the correct size for the employee. Finally, as is the case with the current ETS, each time a respirator is worn, employees must also be provided with training regarding how to properly wear the respirator and how to perform a seal check according to the manufacturer's instructions.

Exclusion Pay

Under the amended ETS, employees who test positive for COVID-19 must be excluded from the workplace for at least ten days, even if the employee is fully vaccinated.

Further, employers must continue to exclude COVID-19 cases and those who had close contact until they meet the return to work criteria. Exceptions to the exclusion requirement for employees with close contact exposure are those employees who were fully vaccinated before the close contact who do not develop symptoms and those who have recovered from COVID-19 in the last 90 days.

Importantly, the amended ETS eliminated a major qualifying factor for exclusion pay. Currently, an employer does not have to provide exclusion pay when the employee is not "otherwise able and available to work." Now, an employer is responsible for providing exclusion pay if the employee cannot work due to qualifying reasons.

The amended ETS clarifies that an employer is also not required to provide exclusion pay when the close contact is not work-related, where the employee receives disability payments, worker's compensation, or temporary disability.

The ETS also now specifies that exclusion pay must be paid no later than the next regular pay date after the pay period(s) in which the employee is excluded.

Employer-Provided Housing and Transportation

The amended ETS also contains several changes to the provisions of the ETS that apply to employer-provided housing and employer-provided transportation with attention to fully vaccinated employees.Employers who provide housing or transportation should discuss these revisions with counsel.

Conclusion

Cal/OSHA will continue to update its Frequently Asked Questions on the ETS. Accordingly, employers should continue to monitor for additions to the FAQ. Given that this is an actively developing area of law, employers should consult with their counsel to assure compliance with this amended ETS.

Come to Hanson Bridgett's June 9, 2021, Mid-Year Briefing Seminar and get your questions answered.