On June 3, 2021, the California Division of Occupational Safety and Health (“Cal OSHA”) adopted revised regulations that address the impact of vaccinations as they have become widely available to the general public in California. These revised regulations contain comprehensive guidelines – more restrictive than those recently imposed by the Centers for Disease Control (CDC) – for employers to follow in addition to many of the prior requirements previously issued by Cal OSHA’s COVID-19 Prevention Program, discussed in our previous Alert.
These revised regulations are expected to take effect no later than June 15, 2021, which is when California intends to fully reopen its economy. However, certain requirements related to physical distancing and face coverings will cease on July 31, 2021, with certain exceptions for those who are not fully vaccinated.
What Are the Key Requirements and Differences from the Prior Cal OSHA Regulations?
1. Scope and Definitions:
- Scope – In addition to the previous exceptions (for example, the standards did not apply to employees working from home, or employers subject to Cal-OSHA aerosol transmissible standards, such as those in healthcare), the revised regulations do not apply to employees who are teleworking from a location of their own choice.
- “Close Contact” – Instead of “COVID-19 Exposure,” the regulations now use the term “close contact,” which means being within six feet of a COVID-19 case during a high-risk exposure period regardless of the use of face coverings. However, it excludes employees who wore respirators (i.e., N95 masks) required by the employer.
- “Exposed Group” – Instead of “Exposed Workplace,” the regulations use the term “exposed group,” which excludes those who are momentarily passing through while wearing face coverings, part of a distinct group with no overlap in the workplace, and those present with face coverings while a COVID-19 case visited a common area for less than 15 minutes.
- “Face Coverings” – The following are now considered sufficient: surgical and medical masks, respirators worn voluntarily, or a tightly woven/non-woven two-layered fabric. However, scarves, ski masks, balaclavas, bandanas, turtlenecks, collars, or a single layer of fabric are specifically excluded.
- “Fully Vaccinated” – This term means the employer has documentation evidencing that the person received, at least 14 days prior, either their second dose in a two-dose COVID-19 vaccine or a single dose COVID-19 vaccine, which must be FDA-approved or have an emergency use authorization from the FDA. We anticipate further guidance regarding what would be considered acceptable means of documentation.
- “Respirator” – This means a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 mask. It will be important for employers to understand the difference between an acceptable “respirator” and other forms of face coverings.
- “Outdoor Mega Event” – These are defined as events that include over 10,000 participants or spectators outdoors that may include conventions, shows, outdoor night clubs, concerts, sporting events, theme parks, fairs, festivals, large races, and parades.
2. Physical Distancing and Face Coverings:
Until July 31, 2021, employers will continue to maintain at least six feet of physical distancing for employees who are working indoors, or at outdoor mega events. The only exceptions are:
At worksites where some or all employees are vaccinated:
- unvaccinated employees are provided respirators for voluntary use.
At worksites where no employees are vaccinated, or it is unclear:
- all employees wear respirators;
- where an employer can demonstrate that six feet of separation is not feasible (if so, at workstations where an employee is assigned to work for an extended period of time, employers must install cleanable solid partitions); or
- momentary exposure while persons are in movement.
Likewise, effective June 15, 2021, employers shall continue to require their employees to wear facial coverings. Exceptions include:
- when an employee is alone in a room, or when all persons (not just employees) in a room are fully vaccinated and do not have COVID-19 symptoms;
- for vaccinated employees when they are outdoors and do not have any COVID-19 symptoms;
- while eating and drinking at the workplace, providing employees are engaged in physical distancing and outside air supply to the area, if indoors, has been maximized;
- employees wearing respirators, such as unvaccinated employees;
- employees who cannot wear face coverings due a medical/mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person;
- specific tasks which cannot feasibly be performed with a face covering.
After July 31, 2021, employers will no longer be required to maintain physical distancing or keep partitions and barriers for employees who are working indoors and at outdoor mega events; however, on that day, employers must provide respirators to unvaccinated employees for voluntary use. However, during an outbreak, the employer will be required to use partitions and barriers along with providing all unvaccinated employees with N95s for voluntary use. Employers should encourage their use and ensure that employees are provided a respirator of the correct size.
3. No Exclusion for Vaccinated Employees or Further Testing for Employees with COVID-19 In The Last 90 Days:
As noted in our previous Alert, the California Department of Public Health (CDPH) advised that employers do not need to exclude fully vaccinated employees who have been exposed to COVID-19 if they are asymptomatic. The new regulations go further to include “close contacts” except those who were fully vaccinated prior to the close contact and without symptoms for 90 days after the initial onset of COVID-19 symptoms or 90 days after an initial test for asymptomatic individuals. For these individuals, along with fully vaccinated employees, employers are no longer required to provide testing during their paid time.
4. Follow-up Verbal Notice Requirement:
When there has been a COVID-19 case at the workplace, the regulations now also require employers to, as soon as practicable, provide “verbal notice” if they reasonably know that an employee has not received the written notice or has limited literacy in the language in which the written notice was provided.
5. Vaccination Information in Employer’s Prevention Program:
The regulations now require employers to include information on how the vaccine is effective at preventing COVID-19 and protecting against both transmission and serious illness or death as part of the COVID-19 prevention training.
Can Employers Require Employees to Get Vaccinated, and if Employees Refuse, What Issues Could an Employer Face?
Employers may require all employees to get vaccinated if the employer has a legitimate business need and/or vaccination is job-related (i.e., to reduce the spread of communicable diseases in the workplace) unless the employee is unable to receive the vaccination as a result of needing a reasonable accommodation based on a disability/medical reason or sincerely held religious belief. The employer must engage in the interactive process to determine how the employee can be reasonably accommodated to minimize the employee’s risk of exposure and spread of COVID-19 in the workplace. Employers can reasonably accommodate by considering offering remote work, additional personal protective equipment, moving the employee’s workspace to be more isolated, and unpaid leave.
If it is essential that employees at a worksite be vaccinated, and the company has already engaged in the interactive process to provide a reasonable accommodation for an unvaccinated employee, the employer may consider trying to prevent the employee from working at the worksite, but employers should consider this option with caution, as transmission rates among vaccinated employees remain low (thereby diminishing an argument that unvaccinated employees could present a safety risk to employees and/or the public). Employers should carefully consider the employee’s preferences for accommodation and only consider denying when an alternative, but effective, reasonable accommodation exists.
Additionally, employee privacy and morale are important and legitimate considerations for employers. There may be vaccinated employees at the workplace who are uncomfortable working with unvaccinated employees, or unvaccinated employees uncomfortable with sharing their unvaccinated status. Moreover, employers should also review their guest/visitor and third-party customer entry policies when reviewing their future facial covering policies. In an effort to minimize risk, as well as protecting the privacy of those who choose to wear N95 masks, employers should consider providing the same level of COVID-19 safety measures and reasonable accommodations they had prior to the wide availability of vaccinations, such as providing N95 masks to all employees for voluntary use.
What Is Considered Proof of Vaccination?
Though the regulations do not specifically state what constitutes “proof of vaccination,” California local jurisdictions have issued guidance regarding required proof for private venues and events. For example, in Los Angeles County, the Public Health Department accepts photo identification of the person along with proof of full vaccination against COVID-19, such as the person’s vaccination card (which includes name of person vaccinated, type of COVID-19 vaccine provided and date last dose was administered), or a photo of the vaccination card as a separate document, or a photo of the vaccination card stored on a phone or electronic device, or documentation from a healthcare provider. In other counties, such as Santa Clara County, self-certification is permitted. Accordingly, employers should check with their local county. However, we anticipate the Division of Occupational Safety & Health will provide further guidance in this area. More importantly, any vaccination status or employee medical records provided by an employee must be kept confidential.
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, and 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.