On June 17, 2021, the Cal/OSHA Standards Board voted to adopt revisions to the Emergency Temporary Standards (ETS), and Governor Gavin Newsom signed an executive order allowing the revised ETS to go into effect immediately. The revised ETS now applies to nearly all workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.
The revised ETS mostly eases requirements for employers, especially with respect to their vaccinated employees, though some requirements first adopted in November 2020 with the original ETS remain in effect. At the same time, Cal/OSHA has imposed certain new requirements.
Some of the major changes in the revised ETS include:
Significant Changes for All Employees Regardless of Vaccination Status
- No physical distancing or barrier requirements regardless of vaccination status, except during an outbreak or major outbreak. Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees) and must generally implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees).
- No face covering requirements outdoors (except during outbreaks), regardless of vaccination status. Employers may not retaliate against employees for voluntarily choosing to wear face coverings.
- Clarifications to exclusion pay. Under the revised ETS, exclusion pay is to be paid at the employee’s regular rate of pay no later than the pay period covering the period of time the employee was excluded, and is subject to all normal enforcement provisions for unpaid wages. If an employer decides that an employee is not eligible for exclusion pay, the employer must provide notice of the denial to the employee and note the applicable exception. Exclusion pay may be enforced through all normal wage enforcement procedures, meaning that a failure to provide exclusion pay when required could trigger wage statement, waiting time, and PAGA penalties. Employers should review carefully all circumstances in which exclusion pay may be owed.
- Updates to the definition of “Worksite” and “Exposed Group.” The revised ETS clarifies the definition of “worksite” and “exposed group” for purposes of counting towards an outbreak, sending notifications, and testing. An “exposed group” would include all individuals present in a work location, work area, or common area where a COVID-19 case was present, but does not include:
- Areas where people pass through without congregating while everyone is wearing face coverings;
- If the COVID-19 case was part of a distinct group of employees that was not present at the workplace at the same time as other employees (i.e., shifts that do not overlap); or
- If the COVID-19 case was in a work area for less than 15 minutes during the high-risk exposure period and all persons in the area were wearing face coverings.
- Cal/OSHA has maintained the broader definition of “worksite” for sending notifications of positive cases.
- Updates for Outbreak and Major Outbreak Situations.
- In an outbreak situation, employers no longer need to test employees in the exposed group on a weekly basis. Instead, employers must make testing available to employees on a weekly basis. Employees who were fully vaccinated prior to the implementation of the revised ETS and who remain asymptomatic, as well as employees who have had COVID-19 in the past 90 days do not need to be provided testing.
- In a major outbreak, respirators must be offered to employees regardless of vaccination status and without waiting for a request from the employee. The employer must offer respirators immediately upon determining a major outbreak is underway. Any unvaccinated employees in the exposed group who are not wearing respirators must be separated from others by six feet unless the employer can show that six feet of distance is not feasible. Employees at fixed work locations where physical distancing cannot be maintained at all times must have cleanable partitions installed.
Changes Applicable to Fully Vaccinated Employees
- Fully vaccinated employees do not need to wear face coverings. Consistent with the California Department of Public Health’s (“CDPH”) guidance, employers no longer need to ensure fully vaccinated employees wear face coverings at work except during outbreaks. In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
- Fully vaccinated employees do not need to be tested or excluded after close contacts with COVID-19 cases unless they have symptoms. Unlike the prior ETS, fully vaccinated employees and individuals who have had COVID-19 in the past 90 days no longer need to quarantine after close contact so long as they remain asymptomatic. These loosened quarantine requirements mean employers do not need to provide exclusion pay for fully vaccinated or recently COVID-19-positive individuals. Ideally, allowing more employees to remain at the worksite after close contact when they previously would have been excluded will address staffing shortages and impacts to production.
The revised ETS defines “fully vaccinated” to mean “the 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.”
Cal-OSHA has issued further guidance clarifying that an employer may document an employee’s vaccination status by:
- Having a copy of the employee’s proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) on file.
- Keeping a record of employees who presented proof of vaccination, but not having a copy of the proof of vaccination itself.
- Having employees self-attest to vaccination status and maintaining a record of who self-attests.
Vaccines must either: (1) be FDA approved; (2) have an emergency use authorization from the FDA; or (3) for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO).
Changes Applicable to Unvaccinated Employees
- Employers must provide respirators, such as N95s, to all unvaccinated employees working indoors, upon the employee’s request. Whenever the employer provides respirators to its employees for voluntary use, it must also encourage the use of respirators, ensure employees are provided a respirator of the correct size, as well as train the employee on how to properly wear the respirator, perform a seal check according to the manufacturer’s instructions each time a respirator is worn, and the fact that facial hair interferes with a seal. Employers providing respirators for voluntary use must also provide those employees with a copy of Appendix D, a guide to respiratory protection at work. An employer may either stock respirators and offer them to employees or may poll workers to determine which employees wish to be provided a respirator before obtaining them. Once an employer has established that it has employees who wish to wear respirators, it should have enough on hand of the correct size and type to fulfill reasonably foreseeable requests upon demand. If an employee prefers to select and purchase their own respirator, an employer may permit this alternative, as long as the employer reimburses the employee in timely manner. In a major outbreak, respirators must be offered to employees regardless of vaccination status and without waiting for a request from the employee. The employer must offer respirators immediately upon determining a major outbreak is underway.
- Employers must make COVID-19 testing available at no cost to unvaccinated employees with COVID-19 symptoms, during employees’ paid time. Given the fact that employers must continue to maintain effective methods to screen employees for COVID-19 symptoms, employers may see an increase in testing demand. Employers should be prepared to immediately refer employees screened by a symptom check to testing.
Requirements That Remain From the Original ETS
- Unvaccinated employees must still wear face coverings while indoors, unless alone in a room, while eating or drinking and at least six feet away from others, when specific tasks cannot be performed with a face covering, or other existing exceptions under the prior ETS.
- Employers must still maintain an effective written COVID-19 Prevention Program. Employers should work with counsel to update their COVID-19 Prevention Program to reflect the revised ETS.
- Employers must still provide training and instruction to employees on the employer’s prevention plan, including new topics such as how employees can participate in the employer’s identification and evaluation of COVID-19 hazards; updated information on methods to decrease the spread of COVID-19, how to access COVID-19 testing, and the fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death; the employer’s policy for providing respirators to unvaccinated employees upon request, and the conditions where face coverings are required. Employers should carefully review and update their training documents, providing training on these new required topics as soon as is practicable.
- Employers must still provide notification to public health departments of outbreaks.
- Employers must still provide notification to employees of exposure and close contacts.
- Employers must still offer testing to unvaccinated employees after potential exposures.
- Employers must still quarantine COVID cases and unvaccinated employees after close contact.
- Employers must still provide exclusion pay to unvaccinated employees who may have been exposed to COVID while at work.
The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.
Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace. Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.