Employers with employees in California who do not comply with these new standards face potential citations by Cal/OSHA and stiff penalties.
On June 17, 2021, following a dizzying series of events, the California Occupational Safety and Health Administration (Cal/OSHA) voted to adopt new emergency temporary standards (ETS) for COVID-19, revising employer obligations designed to curb the spread of COVID-19 in the workplace. Shortly thereafter, Governor Gavin Newsom issued an executive order rendering the new standards effective immediately. In addition to bringing face coverings and social distancing requirements into alignment with federal guidance issued by the Centers for Disease Control and Prevention (CDC) and a recent order by the California Department of Public Health, the new standards update employer mandates on COVID-19 prevention programs, including investigating and responding to COVID-19 in the workplace. The agency also modified required engineering and administrative controls, with the new standards requiring employers to provide new personal prevention equipment in the form of “respirators” such as N95 masks. Employers with employees in California who do not comply with these new standards face potential citations by Cal/OSHA and stiff penalties.
Previous Emergency Temporary Standards
In November 2020, Cal/OSHA issued emergency temporary standards to clarify employer obligations during the COVID-19 pandemic and to prevent outbreaks at workplaces in California. The initial ETS required employers to create and implement a written, site-specific COVID-19 prevention program. The original standards mandated mask-wearing, social distancing, providing face coverings and other personal protective equipment, implementing cleaning and disinfecting procedures, training employees and addressing building ventilation standards and other engineering and administrative controls. The initial ETS required that employers take specific actions upon learning of positive cases in the workplace and set forth investigation, notification and testing requirements with few exceptions. On June 3, 2021, Cal/OSHA adopted new standards, which required continued masking and social distancing in the workplace regardless of vaccination status, unless all persons in a room were verified to be fully vaccinated, among other mandates. Those regulations were withdrawn six days later following public outcry. The original ETS remained in force while the agency reassessed with a promise Cal/OSHA would bring them into alignment with actions taken by state and federal agencies that loosened restrictions regarding face coverings and social distancing.
Continuance and Modifications of Previous Standards
The new ETS update the previous standards to address developments in the pandemic such as the availability of COVID-19 vaccines, increased knowledge about the virus and changes in state and federal guidance.
Workplace Mask Mandates Continue Indoors and Outdoors – but Only for the Unvaccinated
The new ETS permit fully vaccinated employees to discontinue wearing face coverings in the workplace, effective immediately. As for employees who are not fully vaccinated, employers must continue to provide them with face coverings and ensure they are worn properly when indoors or when required by order of the California Department of Public Health. Exceptions to the mask mandate include a single employee alone in a room; eating or drinking at the workplace (so long as employees are at least 6 feet apart and outdoor air has been maximized); employees wearing certain “respirators” (e.g., N95 masks, which are not standard face masks), employees who cannot wear masks due to disabilities or medical conditions and limited time periods where specific tasks cannot feasibly be performed with a face covering. Employees who are not fully vaccinated are also required to wear face masks when traveling with others in employer-provided vehicles during work, with limited exceptions.
Even when face coverings are not required, employers must provide them to employees upon request, regardless of vaccination status. The new ETS are explicit about what is not considered an acceptable face covering, i.e., scarves, ski masks, balaclavas, bandanas, turtlenecks, collars or single-layer fabric coverings. Face shields are not an acceptable substitute.
Employee Vaccination Status Becomes a Focal Point
By differentiating between vaccinated and unvaccinated employees, the new ETS implicitly suggest employers ascertain employee vaccination status. However, the new regulations stop short of requiring employers to ask employees for proof, suggesting employers may allow employees to self-attest to their status under an implicit honor code. (The California Department of Fair Employment and Housing has approved of asking for proof of vaccination. See our prior Alert.)
Continuation of Site-Specific COVID-19 Prevention Programs
Employers remain obligated to create written, site-specific COVID-19 prevention programs, which address the same 11 detailed topics included in the original standards. Employers must continue to identify, evaluate and correct COVID-19 hazards, provide engineering and administrative controls, create policies and procedures, communicate with and train employees, respond in specific ways to COVID-19 cases, test workers and follow reporting requirements. The new standards, however, contain several important modifications, which include the following:
Employers Must Now Provide “Respirators” to Unvaccinated Employees and Encourage Use
Employers must now provide “respirators” (such as N95 masks) to unvaccinated employees working indoors or in vehicles with more than one person. Without fear of retaliation, employees may request and employers must pay the cost of these respirators. And although use is voluntary, employers must encourage employees to use them when requested.
Discontinuation of Most Physical Distancing but Required Paid Testing of Unvaccinated Employees
The new ETS eliminate most physical distancing requirements including the previous requirement that cleanable Plexiglas or plastic barriers be in place when social distancing is not possible. However, the new requirements also set forth that employees not wearing face coverings or permissible alternatives must be at least 6 feet apart from all other persons unless the unmasked employee is either fully vaccinated or tested at least weekly for COVID-19 during paid time and at no cost to the employee.
Continued Focus on Indoor Ventilation
The new ETS direct employers to evaluate how to maximize ventilation with outdoor air, the highest level of filtration efficiency compatible with an existing ventilation system and whether the use of high efficiency particulate air (HEPA) filtration units or other air cleaning systems would reduce COVID-19 transmission.
Changes to Training, Disinfecting and Personal Protective Equipment
Similar to the old ETS, the new standards obligate employers to train and instruct employees on specific topics, but the new standards include additional subjects, such as accessing COVID-19 testing and vaccinations as well as changes in the regulations. The new ETS also eliminate earlier prohibitions against sharing personal protective equipment but add disinfection requirements when there has been a COVID-19 case at work.
Employee Close Contact with COVID-19 Cases
Since the initial ETS took effect, employers have been obligated to provide written notice of exposure to COVID-19 and workplace outbreaks, to provide testing for impacted employees and to exclude from the workplace but continue to pay employees in close contact with COVID-19 cases in the workplace. Those requirements continue with modifications under the new ETS.
The new ETS reiterate a one-business-day deadline for providing notice of COVID-19 cases, confirm acceptable methods of communication and repeating existing requirements to make testing available at no cost to employees in close contact with a COVID-19 case in the workplace. In the event of exposure to a COVID-19 case, testing must be made available to symptomatic employees who are not fully vaccinated. No such requirement is included for the fully vaccinated who do not have symptoms. This testing must be made available during an employee’s paid time.
The new standards further refine and narrow who must be excluded from the workplace following COVID-19 exposure. They take into account momentary pass-throughs and whether individuals were wearing face coverings. Employees who are fully vaccinated and do not develop COVID-19 symptoms or those who previously had COVID-19 and meet specific criteria are not required to be excluded from work.
The new regulations further confirm an employer’s obligation to maintain the pay, seniority and benefits of employees excluded from work due to a COVID-19 case but add detail about pay rates. Under the new standards, pay is not required for employees who receive disability or workers’ compensation payments or if the employer can demonstrate an employee’s exposure was not work-related.
Modifications to Return to Work Criteria
The criteria for returning to work remains unchanged for COVID-19 cases who showed symptoms and for those who tested positive but were asymptomatic. However, the new regulations add detailed return-to-work criteria for those in “close contact” with COVID-19 cases, as defined by the regulations.
Multiple Infections and Outbreaks
The new ETS refine existing obligations regarding notice and testing for employees in the event of workplace outbreaks and include modifications for those fully vaccinated.
Additional Obligations for Employer-Provided Transportation or Housing
The new standards further update obligations for employers that provide transportation or housing for employees.
The new standards do not apply to employees: working from home; teleworking from a location of the employee’s choice that is not under the employer’s control; those working at a location by themselves with no contact with others; or those covered by a specific regulation relating to Aerosol Transmissible Standards (such as hospitals and certain laboratory settings).
What This Means for Employers
The adoption of the new standards should bring relief to employers in California as they confirm what is required in the workplace as the state continues to reopen. Effective immediately, fully vaccinated employees may go mask-free in the workplace. But prepare for the possibility that building landlords may still require them. For employers who prefer to allow workers to go maskless when permitted, develop a system for determining employee vaccination status, taking into account medical confidentiality issues. Keep face coverings on hand as necessary for distribution and purchase N95 masks (or other compliant “respirators”). Be prepared to enforce mask-wearing where required by the new standards.
As workplaces further reopen and restrictions are loosened, expect growing pains and potential employee conflicts. Employers should dust off and update existing COVID-19 prevention programs to reflect the new standards, adopt new policies and procedures compliant with the new standards and communicate them to employees. Talk to your landlord about ventilation. Further, managers and supervisors should be trained in the new regulations and how to implement them.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Lori Ocheltree, Brooke B. Tabshouri, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.