Key amendments to California's COVID-19 workplace standards imposed on employers

California’s Division of Occupational Safety and Health (Cal/OSHA) Standards Board first announced May 20, 2021, that it would not move forward with adopting its first proposed revisions to its Emergency Temporary Standard (ETS). Subsequently, after originally voting down its second set of proposed revisions to its ETS, Cal/OSHA ultimately adopted this set of revisions on June 4, 2021, only to withdraw them a few days later on June 9, 2021. This ultimately forced employers to continue to follow its original, outdated ETS from November 2020. However, despite the back and forth, it appears we are close to a final resolution as Cal/OSHA adopted its third and hopefully final set of proposed revisions to its ETS on June 17, 2021.

The revised ETS was set to take effect on or about June 27, 2021, pursuant to the anticipated approval by the Office of Administrative Law. However, on the same day Cal/OSHA approved the revised ETS, Governor Newsom signed an Executive Order that made it effective immediately. As such, the revised ETS immediately establishes new COVID-19 workplace safety rules and imposes significant requirements on employers for 180 days, unless the revised ETS is extended or revised sooner. Below we discuss key provisions of the revised ETS and actions for California employers to consider now, including reviewing and revising workplace safety measures and securing respirators for non-vaccinated employees.

Covered employers

The original ETS applied to all employees and places of employment in California, except the following:

• Workplaces with one employee who does not have contact with other persons;
• Employees working from home; and
• Employees already covered by Cal/OSHA’s aerosol transmission standards (which generally includes certain health care facilities, laboratories, and others).

The revised ETS applies to this same group and adds one new exception for employees teleworking from a location of the employee’s choice which is not under the control of the employer.

Key revisions

New limitations and exceptions for face coverings

Cal/OSHA’s revised ETS generally aligns with and even references the California Department of Public Health (CDPH)’s Guidance for the Use of Face Coverings. Employers must provide face coverings and ensure they are worn by employee when required by the CDPH and when non-fully vaccinated employees are indoors or in vehicles.

As such, masks are generally not required for fully vaccinated individuals except when a CDPH exception applies (such as when on public transit, when indoors in school, childcare and other youth settings, when in healthcare settings, when in correctional facilities and detention centers, and when in homeless shelters, emergency shelters and cooling centers). However, employers must allow fully vaccinated employees to wear face coverings without fear of retaliation. In addition, when face coverings are required, employers must continue to ensure such face covering are clean, undamaged, and worn over the nose and mouth.

In addition, the revised ETS retains its prior exemptions to face covering requirements from the original ETS. Specifically, exemptions from face covering requirements apply when:

• An employee is alone in a room;
• Eating or drinking at the workplace, provided employees are at least six feet from others and, if indoors, outside air supply to the area has been maximized to the extent feasible;
• Employees are wearing and properly using respirators required by the employer;
• Employees cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person; or
• Employees are completing specific tasks that cannot feasibly be performed with a face covering.

Cal/OSHA’s revised ETS also places limitations on the type of face coverings that employees must wear in the workplace. Notably, a face covering must be a surgical mask, medical procedure mask, respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers. Impermissible face coverings now include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.

Documentation requirements for fully vaccinated exceptions

As you will notice above, there are certain exceptions based on vaccination status. For an individual to be deemed fully vaccinated, the employer must have 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 that received approval or emergency use authorization from the FDA, or, for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO). Cal/OSHA’s recently released guidance on this revised ETS specifies employers do not have to use a specific method of documentation for vaccination status but must ensure the information is kept confidential. Acceptable methods suggested by Cal/OSHA include:

• Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
• Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
• Employees self-attest to vaccination status and employer maintains a record of who self-attests.

Cal/OSHA also clarifies employers do not have to inquire about and document vaccination status if they continue to treat all employees as unvaccinated and take the more protective steps under the ETS.

Replacement of physical distancing mandates with respirator requirements

In another substantial change, employers no longer must comply with physical distancing requirements, unless necessary during an outbreak. Instead, employers must provide respirators for voluntary use, upon request, to all employees who are not fully vaccinated that work indoors or in vehicles with more than one person. The respirators must be approved by the National Institute for Occupational Safety and Health (NIOSH) for particulate matter protection, such as N95 masks. 

Employees provided respirators for voluntary use must be given the correct size and must be trained on how to properly wear them, on how to perform a seal check according to the manufacturer’s instructions each time a respirator is worn, and on the fact that facial hair interferes with a seal. In addition, employers must train all employees on its policies for providing respirators and the right of employees who are not fully vaccinated to request a respirator for voluntary use without fear of retaliation and at no cost to them. Employers also must encourage respirator use, but they should be mindful of potential discrimination risks. This is part of other increased training requirements, including but not limited to the proper use of face coverings, the fact that they are not respiratory protective equipment and are most effective in combination with physical distancing, increased ventilation indoors and respiratory protection, on the conditions under which face coverings must be worn in the workplace, on the fact that face coverings are additionally recommended outdoors for people who are not fully vaccinated if six feet of distance between people cannot be maintained, and on the fact that employees can request face coverings from the employer at no cost to the employee and can wear them at work, regardless of vaccination status, without fear of retaliation.

In light of this respirator requirement, employers are urged to consider their supply needs for N95 masks in order to have them available for unvaccinated employees.

Testing for non-vaccinated symptomatic employees

In addition to providing respirators to non-vaccinated employees, employers must make COVID-19 viral testing available at no cost during paid time to employees who are not fully vaccinated and experience COVID-19 symptoms. This requirement is not limited to those with symptoms related to workplace exposures, and there is no current guidance as to how often this testing needs to be provided.

New verbal notice requirements

Similar to requirements under the original ETS, the revised ETS requires employers to give written notice to people at the worksite who may have been exposed to COVID-19, including all employees, independent contractors and other employers at the worksite during the high-risk exposure period regardless of their vaccination status. This notice must be provided within 1 business day of when the employer knew or should have known of a COVID-19 case, without revealing any personal identifying information of the case, and in a form readily understandable by employees. The ETS clarifies that this notice can be provided by personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending.

Additionally, the revised ETS requires employers to provide verbal notice in a language understandable by the employee as soon as practicable if they should reasonably know that an employee has not received the notice or has limited literacy in the language used in the notice. Accordingly, employers with high numbers of non-English speaking employees in California may want to consider providing the initial written notice in their native language in addition to English.

Updated outbreak requirements

The revised ETS also updates requirements for outbreaks or major outbreak, which are now defined based on exposed groups rather than exposed workplaces. For example, employers do not have to provide COVID-19 testing at no cost during paid time to employees who were fully vaccinated before the outbreak and who do not have COVID-19 symptoms, even if they were in the exposed group.

Next steps

California employers are encouraged to review all changes to the ETS with counsel and to evaluate their current COVID-19 prevention plan, notices and other related documents as soon as possible to ensure compliance with the revised ETS. California employers are also urged to consider how they will approach the issue of COVID-19 vaccines in relation to their employees in light of these ETS revisions and recent EEOC vaccine guidance.

If you have any questions regarding this development or other COVID-19 related requirements, please contact the author, your DLA Piper relationship attorney, or the DLA Piper Employment group at CoronavirusEmployment@dlapiper.com.