Revisions to California’s COVID-19 workplace emergency temporary standard (ETS) were delayed again this week at a special meeting of the Cal/OSHA Standards Board, but employers may find a silver lining to this cloud.
The Standards Board voted at the end of the four-hour meeting on June 9 to withdraw the revised ETS text it had approved less than a week earlier (on June 3) so the Cal/OSHA staff can make some quick changes and resubmit them to the Standards Board for a vote at its June 17 meeting.
The Board’s action means the revisions approved on June 3 (which included some loosening of requirements and recognition of vaccines as a form of protection) won’t go into effect because the Office of Administrative Law (OAL) will not complete its 10-day review and approval process.
Face Masks – New CDPH Guidance and Potential ETS Revision
The focus of the Board’s special meeting this week was a June 7 letter from the California Department of Public Health (CDPH) stating that CDPH would be issuing new guidance changing face mask requirements, effective June 15.
The new CDPH guidance became public on June 9, and is available at www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx#June15guidance.
Matching the recommendations from the Centers for Disease Control and Prevention (CDC), the CDPH will no longer require masks for fully vaccinated individuals, except in certain limited settings where masks are required for everyone, regardless of vaccination status (such as health care settings, on public transit, indoors in schools, state and local correctional facilities, and homeless shelters).
For unvaccinated individuals, the new CDPH guidance will require masks in indoor public settings and businesses (such as retailers, restaurants, theaters, family entertainment centers, at meetings and in state and local government offices serving the public).
In order to prevent its new June 3 amendments from being inconsistent with CDPH guidance, the Board voted to recall its standard from OAL to allow staff to make quick revisions to the masking portion of its regulation, as well as potentially revising other sections.
During the two hours of public testimony at the June 9 meeting, the California Chamber of Commerce and other business representatives urged the Standards Board to make the ETS consistent with CDC and CDPH guidance on face masks; questioned the need to require employers to provide N95 masks to workers upon request; and asked for clarification on any requirement to document the vaccination status of employees.
Several speakers pointed out that N95 masks need to be properly fitted to be effective and should be reserved for use by health care workers, first responders and as already required during the wildfire season, especially considering supply chain challenges that make the N95’s difficult to obtain.
Labor representatives pushed for potentially providing N95’s to all workers, vaccinated or not, and not relying on individuals to self-certify their vaccination status.
The text for the new proposed ETS revision should be released by June 11 to allow sufficient public notice before the Standards Board meeting on June 17. Until that text is made public, it remains unclear what issues (besides face masks) the revision will address. If adopted, the revision would go into effect 10 days after the vote (June 28).
Employers should be aware that the present ETS — as passed in November 2020 — will continue in effect until this new text is adopted and goes into effect. That means no changes to workplace standards on June 15, despite the changes applicable to Californians in their personal lives.
New Testing Guidance
Although it wasn’t discussed at the Standards Board meeting, another important guidance was recently released by the CDPH. On June 7, the CDPH posted a memo on “Updated Testing Guidance.” Employers should take a look at the memo as a potentially significant obligation that is outside of the COVID-19 ETS. The new testing guidance appears to require weekly or biweekly testing of unvaccinated employees at workplaces in certain industries on an ongoing basis.
The testing guidance memo is available at www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Updated-COVID-19-Testing-Guidance.aspx.