PUBLICATIONS

On June 17, 2021, the California Division of Occupational Safety and Health (“Cal-OSHA”) voted to adopt its (now third) revised COVID-19 Prevention Emergency Temporary Standards, which take effect immediately as a result of Governor Gavin Newsom signing an executive order waiving the normal 10-day legal administrative review required for new/revised regulations. Cal-OSHA withdrew its previously adopted rules that permitted employees to forgo masks if every other person in a room was fully vaccinated (discussed in our previous Alert).

The revised regulations attempt to address the availability of vaccinations, align with the Centers for Disease Control (“CDC”) and California Department of Public Health (“CDPH”) guidance, and to provide options for employers to make a safe transition from physical distancing and face covering mandates to more normal operations.

What Are the Major Changes in the Revised Regulations?
 

• Testing or Quarantine – Fully vaccinated employees do not need to be tested or quarantined after close contact with COVID-19 cases unless they exhibit symptoms. As a result, employers must offer testing at no cost, and treat the time needed to test as hours worked, to the following employees:
  • Symptomatic unvaccinated employees, regardless of whether there is a known exposure
  • Unvaccinated employees after an exposure
  • Vaccinated employees after an exposure if they develop symptoms
  • Unvaccinated employees in an outbreak (3 or more cases in an exposed group of employees)
  • All employees in a major outbreak (20 or more cases in an exposed group of employees)

Accordingly, the new regulations suggest that all employees, regardless of their vaccination status, must undergo daily screenings COVID-19 symptoms.
 

• Physical Distancing Requirements – The revised regulations remove the physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
  • If a worksite has an outbreak, employers must evaluate whether it is necessary; or
  • When a worksite has a major outbreak.

Moreover, there are no physical distancing requirements whatsoever in the employer-provided housing and transportation regulations. In fact, Cal-OSHA’s employer-provided housing and transportation regulations would not apply where all affected employees in such housing or transportation are vaccinated.
 

• Face Covering Requirements – Except in outbreak situations when physical distancing cannot be maintained, and other settings where CDPH requires face coverings (i.e. schools and other youth settings, public transit, healthcare settings (including long term care facilities), prisons, and shelters and cooling centers), fully vaccinated employees will be exempt from wearing face coverings indoors. However, employers must document their vaccination status. Employers must still require unvaccinated employees to wear face coverings, except: (1) when alone in a room or vehicle; (2) when eating and drinking; (3) when a disability- or religious-related accommodation is required; and (4) when job duties make a face covering infeasible or create a hazard.

For employees working outdoors, face coverings are not required outdoors (except during outbreaks and other settings as required by CDPH), regardless of vaccination status, though workers should be trained on CDPH recommendations for outdoor use of face coverings.

As worded, the regulations provide a choice for vaccinated employees to wear face coverings, even if not required to do so. As a result, employers may not retaliate against any employees, including vaccinated employees, for wearing face coverings.
 

• Respirators (or N95s) Must Be Provided to Unvaccinated Employees Upon Request – The revised regulations require that upon request, employers shall provide respirators (i.e. N95 or equivalent) for voluntary use to all employees who have not been fully vaccinated and who are working indoors or in vehicles with more than one person, or when there is a major outbreak to any employees in the exposed group for voluntary use. Notably, Cal-OSHA implemented this regulation as a result of completely eliminating physical distancing requirements, despite CDC and federal OSHA guidance requiring unvaccinated persons to physically distance indoors. Employers should make a good faith estimate and effort to provide respirators as soon as possible to employees that request them and should order more respirators immediately upon depleting such supply. Cal/OSHA lists some, but not all, vendors that sell N95 respirators in large quantities (vendors able to fulfill orders of more than 100,000 units) at https://www.dir.ca.gov/dosh/wildfire/List-of-N95-Vendors.pdf. There are many vendors who have N95s available in smaller quantities.
  
   
• Air Filtration – Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and must evaluate the use of additional air cleaning systems.
  
   
• “Fully Vaccinated” Definition Modified Regarding Documentation – In comparison to the definition previously adopted, the revised regulations define “fully vaccinated” employee when an employer has documented that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Vaccines must be FDA approved; have an emergency use authorization from the FDA; or, for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO). Although the revised regulations do not specify a particular method for documentation, Cal-OSHA has advised that acceptable options include:
  • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and employer maintains a record of who self-attests.
     

The employer must record the vaccination status for any employee not wearing a face covering indoors, and this record must be kept confidential. In keeping with other federal and state laws, employers should instruct their employees not to reveal any health-related conditions or information beyond their name; type of vaccine administered; last date of administration; and, if necessary, any personal identifying information needed to verify the employee’s identity. Nothing in the revised regulations prevents an employer from requiring all employees to wear a face covering instead of having a documentation process. That said, employees who do not, or refuse to, provide their vaccination status must be treated as unvaccinated. Employers must not take disciplinary or discriminatory action against any employee who refuses to provide their vaccination status.

• Limitations On Testing for Minor and Major Outbreaks – The revised regulations further limit an employer’s COVID-19 testing obligations to those who fall within the “Exposed Group.”
   

For minor outbreaks, the following are exempt from testing:

• Employees who were fully vaccinated before the testing provisions of the Revised ETS became applicable to the workplace and who do not have COVID-19 symptoms;
• COVID-19 cases who did not develop COVID-19 symptoms after returning to work for 90 days after the initial onset of COVID-19 symptoms; and
• COVID-19 cases who never developed symptoms, for 90 days after the first positive test.

For major outbreaks, however, employers will need to test all employees in the exposed group, regardless of vaccinated status.

What Will Still Be Required

Despite changes to the regulations, Cal-OSHA will still require employers to do the following:

• Maintain an effective written COVID-19 Prevention Program;
• Provide effective training and instruction to employees on the employer’s prevention plan and their rights under the regulations, including how to access COVID-19 testing and vaccination, and the fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death;
• Notify applicable public health departments of outbreaks;
• Notify employees of exposure and close contacts;
• Offer testing to applicable employees after potential exposure;
• Maintain requirements for responding to COVID-19 cases and outbreaks;
• Maintain quarantine and exclusion pay requirements for applicable employees; and
• Maintain basic prevention requirements for employer-provided housing and transportation.

If you have any questions regarding this Alert, please contact the authors, David L. Cheng, partner in our Los Angeles office at dcheng@fordharrison.com, or Paul M. Suh, associate in our Los Angeles office at psuh@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.