New Rules Pending: Cal/OSHA Updates Emergency Temporary Standards

a hard hat, safety glasses, safety gloves and a workplace safety book

June 3, 2021, the Standards Board of California’s Occupational Safety and Health Association (Cal/OSHA) voted on the highly anticipated revised Emergency Temporary Standard (ETS). The seven-member panel originally voted 4-3 in opposition of the revised ETS, but moments later returned with a unanimous vote in favor of the revisions. The decision may bring more questions than answers and will be with the Office of Administrative Law for review for ten (10) days prior to taking effect.   

The updated ETS has changed some significant definitions regarding key terms:

· Cal/OSHA has added an exception to the scope of the standards by clarifying that the standards do not apply to any employees that are working remotely or in a location of their choosing.

· The revised ETS uses the term “close contact” rather than the previous “COVID-19 exposure” which is more in line with the Centers for Disease Control (CDC) guidance.

  • “Close contact” is defined as being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period. This applies regardless of the use of face coverings but does not include time that an employee is within six feet of the COVID-19 case and was properly wearing a respirator (if required by the employer).

· The term “exposed group” is used instead of “exposed workplace” which offers clarification for specific exposed employees rather than an entire workplace. “Exposed group” now will only include those cases where employee COVID-19 cases are present. 

· The ETS has also clarified the definition for “face covering” to specifically exclude “a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric” stating that these may be worse than wearing no face covering at all. 

· A “COVID-19 case” definition is provided as one or more of the following:

  • A person who tests positive for COVID-19.
  • A person who has a COVID-19 diagnosis from a licensed healthcare provider.
  • A person who is subject to a COVID-19 order to isolate by a local or state health official. 
  • A person who died due to COVID-19 as determined by a local health department or included in county statistics. 

· “Fully vaccinated” is used in the updated ETS and means that the employer has documentation establishing that the employee received their full dose of the vaccine at least 14 days prior (either both doses of Pfizer or Moderna, or one dose of the Johnson & Johnson vaccine). What is not defined is what “documentation” is needed and employers should remember that any information regarding an employee’s vaccination status must be kept securely, confidentially, and separate from the regular personnel file. 

Aside from revised definitions, the new ETS has some new key provisions:

1. Face coverings in the workplace are still required in many instances. Employers are still required to provide face coverings and ensure they are properly worn by all employees that are indoor or outdoor and within six feet of other people. Additionally, the ETS provides:

a. Fully vaccinated employees do not have to wear face coverings if:

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

b. Employers are prohibited from preventing any employee from wearing a face covering, unless doing so creates a safety hazard.

c. Employers are required to implement and communicate methods to ensure that non-employees are aware of face covering requirements on the premises.

d. Individuals (regardless of vaccination status) are not required to wear face coverings when eating and drinking so long as physical distancing is maintained. 

2. N95 respirators are required to be provided for non-vaccinated employees. Beginning July 31, 2021, employees that are not fully vaccinated must be provided with N95 filtering respirators or other NIOSH approved respirators for voluntary use. Training is required to be provided on how these are to be worn, sealed, and stored. 

3. The ETS do not preempt more stringent rules. The ETS clearly states that the regulations are not intended “to limit more protective or stringent state or local health department mandates or guidance.”

4. A written COVID-19 Prevention Program (CPP) is required for all California employers. The CPP was implemented under the original ETS and the revised ETS contains new requirements that must be included: 

a. Employer is required to evaluate existing COVID-19 prevention controls at the workplace and the need for additional controls.

b. Employer is required to provide training and instruction that includes:

  • Employer’s COVID-19 policies and prevention.
  • Information regarding COVID-19 related benefits. This includes any mandated available leaves, workers’ compensation law, local government requirements and employer’s own leave policies that are available.
  • Training on what COVID-19 is and how it is spread.
  • Methods for physical distancing that are implemented and the importance of face coverings.
  • Whenever respirators are provided for voluntary use, instruction on how they are worn and sealed is to be provided.
  • Importance of proper hand washing.
  • Proper use of face coverings and education that specifies face coverings are not respiratory protective equipment.
  • COVID-19 symptoms and the importance of remaining home and obtaining the test when symptoms are present, and the importance of the vaccination.
  • Information on employer’s COVID-19 policies and how to access testing and vaccination as well as the “fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.”

c. Return to work criteria and employer safety measures.

5. Testing requirements for fully vaccinated employees have been updated. Previously testing was required to be offered to any employee that was in close contact in the workplace. The revisions to the ETS provide important exceptions to the testing obligations:

a. Testing is not required after close contact if the employee is fully vaccinated.

b. For employees that have had COVID-19, recovered, returned to the workplace, and are symptom free, testing is not required for the 90 days after initial onset of symptoms, or for those without symptoms, for 90 days after their first positive COVID-19 test. 

6. New verbal follow up may be required after a COVID-19 case in the workplace. The ETS provides specific information on the steps an employer must take when there is a COVID-19 case in the workplace. Notification is still required and the ETS provides that “If 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.”

7. Physical distancing requirements. California will maintain physical distancing in the workplace until at least July 31, 2021. Unless employees are properly wearing a respirator, physical distancing will be required if employees are working indoors or working outdoors and cannot maintain at least six feet of separation or at “mega events” (events with more than 10,000 people). Employers can satisfy the physical distancing requirements by providing respirators to all employees that are not fully vaccinated. 

8. Updates to exclusion policies. Fully vaccinated employees do not need to be excluded from the workplace following an exposure so long as they are asymptomatic, or individuals have had and recovered from COVID-19 within the last 90-days. Additionally, all COVID-19 cases will continue to be excluded regardless of vaccination status. Those that do not meet an exception, and close contact individuals that do not develop any symptoms, may return to work after 10 days since the last known contact. For those that develop symptoms, they cannot return to work until:

  • At least 10 days have passed since the onset of symptoms;
  • At least 24-hours have passed with no fever without the use of medication; and
  • Symptoms have improved. 

9. Exclusion pay revisions. The new ETS requires that all employers pay all excluded employee their full wages and maintain all benefits as if they were not excluded from the workplace. Employers are permitted to use sick leave or PTO if permitted by law. Additionally, wages required for exclusion pay must be paid no later than the next regular pay date after the pay period in which the employee was excluded. Exclusion pay requirements do not apply “where the employee received disability payments or was covered by workers’ compensation and received temporary disability.” It is also not required when the employers can demonstrate that the close contact was not work related. What is important to note is that the new ETS eliminates the exception provided by the original ETS that states that pay is not required when the excluded employee is not “otherwise able and available to work.” Meaning, the revised ETS requires that even if an excluded employee is not able to work, due to severe COVID-19 symptoms or otherwise, the revised ETS requires that the employer provide exclusion pay. Because the revised ETS specifically provides that unpaid exclusion pay is “subject to enforcement through procedures available in existing law,” employers should tread lightly and operate with the assumption that employees will pursue individual claims and even Private Attorneys General Act (PAGA) claims for unpaid exclusion pay. 

10. Updates to rules regarding COVID-19 outbreaks in the workplace. An “outbreak” (three or more cases during a 14-day period) and a “major outbreak” (20 or more cases during a 30-day period) have the following revisions:

  • Testing is no longer required for fully vaccinated individuals or those that have recovered within 90 days;
  • Physical distancing and other safety precautions will be reinstated during the outbreak; and
  • The use of MERV-13 or higher efficiency filters (if compatible with the ventilation system) are now required even during regular outbreaks. 

11. Updates for employers providing housing. The updated ETS has several revisions for employers providing housing and includes exemptions for those that have an employee population that are fully vaccinated. 

This is an overview of the key revisions and changes within the ETS. This will be with the Office of Administrative Law for final approval and will likely take effect on June 14, 2021 and is anticipated to last through the end of the year. It is important to note that this is not yet approved. TPPS (like everyone else) is continuing to digest this new guidance and what it means for employers. Employers, it may be time to review and your COVID-19 prevention and procedure plans. TPPS is here to keep you updated on the revisions and to assist in the changes that may be required within your workplace. 

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