As most California employers know, June 15 marks the day California set for its official “reopening” after the long COVID-19 pandemic. After a marathon session of public comment, late on June 3, 2021, Cal/OSHA adopted revised Emergency Temporary Standards (“ETS”) addressing the rules for employers as California moves toward June 15. The long-awaited changes to the temporary rules adopted by Cal/OSHA last November represent a serious challenge for employers who must marry Cal/OSHA’s guidelines with more relaxed guidance coming from county and state health departments. In addition to this alert, Raines Feldman will host a webinar on June 15, 2021, to further discuss Cal/OSHA’s revised ETS and how employers should navigate California’s reopening.
Below we have summarized key rules adopted by Cal/OSHA, but all employers are encouraged to review the standards in their entirety here: https://www.dir.ca.gov/OSHSB/documents/Jun032021-COVID-19-Prevention-Emergency-txtbrdconsider-Readoption.pdf. Please note that even the Cal/OSHA Board Members had questions about employers’ obligations implementing the new ETS as they were voting, so we will continue to monitor the Cal/OSHA FAQ website for updates clarifying the new ETS’s application and will provide further information as it becomes available. Employers are encouraged to contact their Raines Feldman attorney to discuss the new ETS’s application to their business’s unique circumstances.
So What Really Changes on June 15?
We will go into detail below about what the ETS requires of nearly all California employers as of June 15. Much of this is not a change from the rules implemented by Cal/OSHA back in November, so for most employers, the ETS will just require some updating. But what most employers want to know is, in light of the June 15 “reopening,” what do they get to do that is different?
Face Coverings
While Governor Newsom announced that California is dropping its mask mandate in most circumstances as of June 15, Cal/OSHA has made it clear it will continue to require mask use in most circumstances for unvaccinated employees and workplaces with a mix of vaccinated and unvaccinated employees. The new rule requires employees to wear masks when indoors as well as when outdoors if a six-foot distance is not maintained.
However, masks are not required primarily for fully vaccinated employees:
1. When an employee is alone in a room;
2. When all individuals in a room are fully vaccinated;
3. When fully vaccinated and outdoors, assuming no COVID-19 symptoms.
There are other circumstances where masks may not be required, such as when employees are eating and drinking, when masks may not be feasible, and in other limited circumstances.
In addition, beginning July 31, 2021, employers must provide a respirator (N95) to unvaccinated employees working indoors or at outdoor mega events. Although employers have an obligation to provide them, employees are not required to use them (they still have to wear another compliant face covering).
Physical Distancing
Until July 31, 2021, physical distancing requirements, meaning six feet of separation, continue to apply indoors and at “outdoor mega events,” which are events with at least 10,000 participants. Employers do not have to enforce physical distancing if employees are provided with respirators (N95s) for voluntary use. If an employee is at the same workstation for extended periods and physical distancing cannot be maintained, cleanable solid partitions that reduce transmission must be installed. Employers must also maximize ventilation through natural and mechanical means unless it would pose a hazard to employees.
No, the rules are not different for fully vaccinated employees currently. We are hoping for further clarification from Cal/OSHA down the road.
Most of the other elements of the ETS involve changes to pre-existing portions of the rules that have been in place since November 2020. For most employers, that will just mean a revision of their existing COVID-19 Prevention Plan, which should cover most of the elements set forth below.
Written COVID-19 Prevention Program
If they haven’t already, employers must develop a written plan setting forth how the employer will comply with the ETS, which can be integrated with employers’ existing Injury and Illness Prevention Program documents or established in a separate document. The plan must detail the employer’s compliance plans for the requirements described in the sections below.
Communicating with Employees
Employers must establish a system for communicating the following to employee:
1. That employees can report COVID-19 symptoms, hazards, and close contacts without fear of retaliation;
2. That employees in high risk categories can request accommodations and how to do so;
3. The availability of COVID-19 testing for employees exposed to COVID-19 in the workplace; and
4. Information about COVID-19 hazards and the employer’s mitigation plan.
Identifying and Evaluating COVID-19 Hazards
Employers must identify and evaluate COVID-19 hazards. The following are required policies and procedures for employers:
1. Allowing employees and their authorized representatives to participate in identifying hazards;
2. Screening employees, which may include at-home screening prior to arrival at work;
3. Procedures for responding to COVID-19 cases in the workplace (including infected visitors);
4. Identify COVID-19 hazards in all areas of the workplace and as to equipment usage, doing so with the assumption that all individuals are potentially infections, including noting areas of congregation, areas where employees will be exposed to others (e.g., visitors, vendors, and coworkers), and entrance, exit, and travel pathways in the workplace;
5. Maximizing ventilation in indoor spaces, including through use of portable and mounted air filters;
6. Evaluation of health department orders;
7. Identifying areas of improvement for existing infection prevention plans; and
8. Periodic inspections to identify additional hazards.
Responding to COVID-19 Cases in the Workplace
When an employer receives notice of a COVID-19 case at the worksite, they must:
1. Determine the date and time the COVID-19 case was present at the workplace, the date of the positive test or diagnosis, and date of symptom onset if applicable;
2. Identify close contacts by determining where in the workplace the COVID-19 case was present and who else may have also been present during the high risk exposure period (meaning from 48 hours before the first positive test, diagnosis, or symptom onset through the time the employee is no longer required to isolate);
3. Provide written notice to employees in a language they can understand via text, email, or personal service that people at the worksite may have been exposed and the disinfection plan for impacted spaces; contractors and other employers onsite must also be informed;
4. Provide the notice required by Labor Code section 6409.6(a)(2) and (c) to the authorized representative of employees, if applicable;
5. Except for fully vaccinated individuals and those who were a COVID-19 case in the prior 90 days, provide free testing to employees with close contact to the COVID-19 case during paid time; and
6. Investigate hazards that may have contributed to workplace exposures.
Training Employees
Employers must train employees on:
1. COVID-19 policies, hazards, and how to participate in identifying hazards;
2. Information on available employee benefits, including local, state, and federal programs;
3. Information about COVID-19 as an infectious disease and its transmission;
4. Physical distancing methods and the importance of face coverings;
5. If respirators are provided for voluntary use, information on appropriate fit and performing a seal check;
6. The importance of hand washing and the ineffectiveness of hand sanitizer with dirty hands;
7. Information regarding face covering, their deficiencies, and the greater efficacy of N95s; and
COVID-19 symptoms and the importance of vaccination. Frequently touched objects must be “regularly” cleaned and protocols for cleaning, including frequency, must be communicated to employees and their representatives. If a COVID-19 case was present at the worksite, the impacted areas must be cleaned and, if another employee will use the area within 24 hours, the area must also be disinfected.
Recordkeeping
Employers are required to notify the local health department, when mandated by local rules, of COVID-19 cases. Employers must also keep a record of all COVID-19 cases containing the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test.
Exclusion Pay
Employers have an expanded obligation to provide “exclusion pay” to unvaccinated employees who are unable to work or telework on account of a COVID-19 exposure in the workplace. The new ETS eliminates the prior exception employers had to avoid exclusion pay when an employee was unable to work (i.e., sick). Employers must provide exclusion pay even if a worker is under COVID-19 isolation and cannot come into work due to infection. Employers must provide impacted employees with information about available benefits. An exposure unrelated to work does not create an obligation to maintain an employee’s pay.
The ETS make clear that vaccinated employees are not included in this analysis, because they are not required to quarantine, as has been consistent with federal, state and county guidelines for months.
Unchanged from Prior ETS
The new ETS does keep some of the important features of existing guidelines. It continues to cover all workplaces where more than one employee works or where a single employee must interact with others, except that an employee working remotely at a location of their choice is not covered even if interacting with others at their chosen location. It also maintains
Quarantine and Isolation
The ETS now aligns with CDPH guidance and mirrors the 10-day minimum quarantine and isolation periods. Vaccinated employees and those who contracted COVID-19 in the prior 90 days are not considered close contacts of a COVID-19 case and do not have to quarantine after an exposure but should still monitor for symptoms and self-isolate if symptoms develop.
Additional ETS Rules
Not every facet of the ETS is covered in this summary. For instance, additional rules apply if an employer has an outbreak at the worksite, meaning three or more employee COVID-19 cases, including stringent employer-paid testing requirements. There are also added rules when an employer provides housing or transportation to employees. Employers should immediately consult with a Raines Feldman attorney if they believe their workplace is on the verge of or is experiencing an outbreak, or if their business model involves any of the unique situations addressed in the ETS.
Effective Date of New ETS
While the exact date is not known, Cal/OSHA’s counsel indicated at the meeting on June 3 that the new ETS was likely to take effect on June 15, 2021, but could be a few days earlier or later depending on the pace of behind-the-scenes bureaucracy. This revised version of the ETS is to remain in effect until January 2022 unless earlier revoked or amended.