As we previously reported (here), Cal/OSHA’s Occupational Safety and Health Standards Board (“OSHSB”) held a series of special meetings to revise its controversial Emergency Temporary Standards (“ETS”) related to the ongoing COVID-19 pandemic. And, on June 17, 2021, OSHSB approved updated ETS language that more closely aligns California’s workplace safety requirements with recommendations from the CDC and California Department of Public Health.
Most significantly, the revised ETS permit fully vaccinated employees to unmask indoors. Unvaccinated employees still must mask-up while indoors (except in limited circumstances), but neither vaccinated nor unvaccinated employees are required to wear face coverings when outside, except during an outbreak. The revised ETS also dropped previous social distancing requirements for all employees, except in limited circumstances (e.g., where unvaccinated employees are eating and drinking) and remove restrictions on sharing personal items and equipment. Furthermore, fully vaccinated employees, and others who had COVID-19 in the past 90 days, will no longer be required to quarantine after coming into contact with someone with COVID-19, so long as they are asymptomatic.
According to OSHSB’s FAQs, employers must document employees’ vaccination status in one of three ways: (1) by obtaining a copy of employees’ proof of vaccination; (2) creating a record of employees who presented proof of vaccination; or (3) creating a record of employee self-attestations as to vaccination status (i.e., the “honor system”).
Although generally more reasonable, the new ETS still impose some rather unusual and burdensome obligations on employers, including a requirement that employers procure and offer respirator masks (e.g., N-95s) to unvaccinated employees. The new ETS also require employers to make testing available to symptomatic unvaccinated employees, at no cost to the employees. Further, the updated ETS preserve the requirement that employers develop written COVID-19 Prevention Programs.
Per an Executive Order signed by Gov. Newsom on June 17, 2021, the new ETS take effect immediately. Therefore, employers should move quickly to implement the new requirements.