On June 17, 2021, California's Occupational Safety and Health Standards Board (Standards Board) passed amended COVID-19 Emergency Temporary Standards (ETS). Gov. Gavin Newsom issued an Executive Order to make the amended ETS effective as soon as filed with the Secretary of State. The Office of Administrative Law (OAL) filed them, and the Secretary of State posted them, making the ETS effective immediately. These changes attempt to bring the ETS in alignment with recent changes to California Department of Public Health Order and the latest guidance from the Center for Disease Control (CDC). Highlights of the changes to the ETS can be found here.
Face Coverings in the Workplace; Elimination of Physical Distancing
Notably, fully vaccinated employees do not have to wear a face covering indoors except in limited circumstances. Unvaccinated workers will still need to wear face coverings indoors (unless they are alone in a room or eating and drinking) and in shared vehicles. All employees regardless of vaccination status do not have to wear masks outdoors. Unvaccinated employees must be trained that face coverings are recommended outdoors for individuals who are not fully vaccinated when six feet of physical distance cannot be maintained.
Subject to certain exceptions (such as where the is a "major" outbreak), the revised ETS eliminates distancing and barrier requirements in the workplace, regardless of vaccination status.
Obtaining Information Regarding Vaccination Status
Given the many distinctions in the revised ETS between vaccinated and unvaccinated employees, employers will need to either obtain information about employees' vaccination status or treat all workers as unvaccinated (and thus subject to the stricter requirements). Though the ETS does not specify a particular method for documenting status, FAQs published by Cal/OSHA identify acceptable options for documentation to include: 1) maintaining a copy of an employee's vaccination card; 2) asking employees to provide proof of vaccination, and maintaining a record of the employees who presented proof (but not the vaccine record itself); 3) asking employees to fill out a self-attestation form regarding vaccination status and maintaining those forms. If an employee declines to state his or her vaccination status, the employer is required to treat the employee as unvaccinated.
California employers must comply with any applicable privacy laws (such as the California Consumer Privacy Act), and maintain the confidentiality of employees' vaccination records. On May 28, 2021, the EEOC updated its COVID-19 guidance for employers, emphasizing that the Americans with Disabilities Act (ADA) requires that documentation or other confirmation of vaccination, like all medical information, must be kept confidential and stored separately from the employee's personnel files.
N95 Masks for Unvaccinated Employees
On request, employers are required to provide N95 masks or respirators to unvaccinated employees working indoors or in vehicles. Cal/OSHA's related FAQs confirm that employers can either stockpile N95 masks or poll employees regarding their desired need for masks before purchasing them.
Prevention Program/Training Requirement
The ETS included updated training requirements on topics such as vaccinations, respirator use, and when face coverings must be used in the workplace. Employers must continue to have a written COVID-19 Prevention Program. Cal/OSHA intends to update its website with new training materials and a revised COVID-19 Model Prevention Program.
Please contact your Payne & Fears attorney if you have any questions regarding the implementation of these new standards and requirements.