Cal/OSHA’s Revised ETS and What they Mean

a bunch of papers with the words latest updates on them

Cal/OSHA’s proposed revised Emergency Temporary Standards (ETS), that are currently awaiting final approval with the Office of Administrative Law, may be creating more questions than answers. With the State set to “re-open” on June 15, 2021 to mask-free living for those fully vaccinated, many employers and employees are breathing a sigh of relief. However, the ETS has specific guidelines on workplace requirements for “mask-free” and a definition of what fully vaccinated entails. 

Specifically, under the ETS “fully vaccinated” means that the employer has documentation establishing that the employee received their full dose of the vaccine and at least 14 days have passed from the vaccination date (either both doses of Pfizer or Moderna, or the single dose of the Johnson & Johnson vaccine). Additionally, fully vaccinated employees may only be mask free if:

  • They are alone in a room or in a room where all others are fully vaccinated; or
  • If they are outside.

What is not outlined is what this documentation includes, but we can venture to say that taking an employee’s word for it will not be enough. 

So, was that sigh of relief premature? Maybe… 

Based on your Company stance on vaccines, below are the potential requirements:

Requiring Vaccine:

  • Employer is required to store all vaccine information securely and confidentiality.
  • Employer is required to make reasonable accommodations under *ADA and Title VII.
  • For those that cannot be vaccinated and have an accommodation – Employers are required to make N95 respirator or other *NIOSH approved respirator available.

Recommending Vaccine:

  • Employer is required to store all vaccine information securely and confidentiality.
  • Employer is required to make N95 respirator or other *NIOSH approved respirator available to employees.

Remaining Silent (staying out of vaccines altogether)

  • Employer is required to make N95 respirator or other *NIOSH approved respirator available to employees.

*Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and National Institute for Occupational Safety and Health (NIOSH)

Did you notice the N95 respirator (or another NIOSH approved respirator) requirement? That is new under the proposed ETS. According to the revised ETS, employers will be required to make N95 respirators available for voluntary use for non-vaccinated employees. What you may (or may not) know is that respirators bring with them specific training and fitting requirements. Federally, the Occupational Safety and Health Association (OSHA) has a Respiratory Protection Standard that addresses respirators and states that they differ from masks, as N95s are designed to seal tightly against the user’s face. Anytime the use of N95s is required, so are the following:

  • Written Respiratory Protection Program (RPP).
  • Qualified Administrator.
  • Medical Clearance for employees to wear an N95.
  • Annual Fit Testing.
  • Annual Training.

Now we dive into some very targeted semantics… If the use of the N95 is not required and is used on a voluntary basis, then OSHA will permit individuals to wear N95s without medical clearance. OSHA does however require the employer, in such situations, to provide the worker with a copy of Appendix D to the Respiratory Protection Standard. 

If the wearing of N95 respirators is not required, is an RPP, a qualified administer, an annual fit test and annual training required?… The answer is, maybe not? Without additional guidance and clarification from Cal/OSHA we cannot be sure. 

So, what does this mean? We prepare. The idea that, without a mandate for non-vaccinated employees to wear an N95 would invoke all these OSHA requirements for all California employers with an employee population that is not fully vaccinated, seems far reaching. Our hope is that we can make them available for use but not have the stringent guidelines that follow a requirement for wearing respirators.

How to prepare:

Determine your Company stance on vaccines if you have not already established it. Will you require, recommend, or remain silent? 

· If you are collecting vaccine status, establish a policy on how this information is collected, stored, and who has access to it. 

  • How will this be collected?
  • Will copies be made of vaccine cards?
  • Remember that no additional questions should be asked that may open the door to medical information to which we are not privy.

· If you are not collecting this information or have the information with a mixed employee population (vaccinated and non-vaccinated), consider a survey for employees asking if they would like N95 respirators to be made available for use. If so, order them for employees. If not, remember that you are still responsible for providing face coverings for employees.

Understand the new definitions provided by the proposed revised ETS. There are several key changes to be aware of as employers:

· Face coverings have been redefined and explicitly exclude:

  • Scarf
  • Ski mask
  • Balaclava
  • Bandana
  • Turtleneck
  • Collar 
  • Single layer of fabric

· Fully vaccinated means that the employer has “documentation” establishing that the employee received their full dose of a vaccine and at least 14 days have passed from the vaccination date.

· Exposed Group is used to include only those cases where employee COVID-19 cases are present and the individuals that are present at the time rather than exposed workplace (a bonus for employers).

· Close Contact is used instead of previous COVID-19 exposure to fall more in line with CDC guidelines. Close contact is defined as being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more within any 24-hour period. 

Review your COVID-19 Prevention Plan (CPP). This is required for ALL California employers with the only exception being those that have a fully remote workforce that does not have physical interaction. 

Remain Flexible. If this pandemic has taught us anything, it is to be adaptable and flexible. These are the proposed revisions, and they may still change. We have seen rules and regulations issued on a Monday only to be revised and reissued with contradicting rules by Friday. 

Access your Resources. Know that TPPS is here to assist and that we are keeping our finger on the pulse of all things COVID and are prepared to work alongside you to find the best solution for your company. 

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