New COVID-19 Workplace Rules Align with CDC, State Health Dept. Guidelines

This week, the Standards Board of the California Division of Occupational Safety and Health (Cal/OSHA) adopted revisions to the COVID-19 emergency workplace rules.

The changes approved at the Standards Board’s June 17 meeting make Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS) more consistent with face mask guidelines from the Centers for Disease Control and Prevention (CDC) and California Department of Public Health (CDPH).

Both the CDC and CDPH no longer require masks for fully vaccinated individuals except in limited settings where everyone (regardless of vaccination status) is required to wear masks.

Once adopted, the revised ETS typically would not take effect for another 10 days, but Governor Gavin Newsom signed an executive order on June 17 to expedite the timeline.

CalChamber Statement

When the new proposed ETS language was released on June 11, the California Chamber of Commerce issued the following statement:

“We thank Governor Gavin Newsom for eliminating confusion and working to ensure the state re-opens on June 15th with consistent standards for all based on CDC and CDPH guidelines. We are pleased that Cal/OSHA has aligned their newest proposed regulations to CDC and CDPH by eliminating the requirement for vaccinated employees to wear masks in many workplaces. Further, we applaud Cal/OSHA’s common-sense clarification to end social distancing obligations as soon as the regulation goes into effect — instead of the previously proposed July 31st deadline for businesses. Employers are also grateful for clarification on N95s — that they must be provided upon request—and look forward to additional clarification on verifying vaccination status of employees.

“We urge the Cal/OSHA Standards Board to quickly adopt these recommendations and provide further clarification to employers so California can get back to business.”

Substance of New Text

Below is a summary of some of the key issues and the proposed changes:

• Physical Distancing Requirements Deleted: In light of the fact that this new text will go into effect AFTER June 15, the physical distancing requirements have been removed.

• Face Masks for Vaccinated/Unvaccinated Workers: The proposed new rules include more consistency with the Centers for Disease Control and Prevention (CDC)/ California Department of Public Health (CDPH) updated guidance. Vaccinated workers are not required to wear face masks generally. For unvaccinated workers, masks will be required indoors or when in vehicles, with limited exceptions. However, public-facing businesses should take note that the new text requires employers to “develop policies and procedures to minimize employee exposure to COVID-19 hazards originating from any person not wearing a face covering, including members of the public.”

• N95s for Unvaccinated Employees and Stockpiling: The new text adds some key language — “upon request” — which suggests employers may be able to wait to acquire N95s until they are requested by employees. While this is certainly an improvement, further clarification in the FAQs to be prepared by Cal/OSHA is necessary to be certain that this interpretation is correct.

• Documentation of Vaccination: There is a lot of concern among employers related to how they should ask workers about their vaccination status, as well as document that status. Further clarification is necessary. The new language will require the employer to “document” that the individuals are vaccinated. The implications of this change are debatable, and FAQs will be crucial in determining employer responsibility on this issue.

• International Vaccines – 3205(b)(9): Where the prior draft did not recognize foreign vaccines, this new version recognizes vaccines “listed for emergency use by the World Health Organization” which will likely be appreciated by larger/international employers.

Watch for FAQs

Employers can also expect FAQs to be released on some additional points. The CalChamber will provide updates when the FAQs are released.

More details on the changing requirements appeared this week in the CalChamber HRWatchdog blog.

Staff Contact: Robert Moutrie

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Robert Moutrie joined the CalChamber in March 2019 as a policy advocate. He leads CalChamber advocacy on workplace safety, legal reform and protection, tourism, insurance, unemployment insurance, immigration and education. He is CalChamber's expert on the COVID-19 workplace regulation and was closely involved in its drafting and amendments process at Cal/OSHA. Moutrie has represented clients on matters such as consumer fraud litigation, civil rights, employment law claims, tort claims, and other business-related issues in federal and state courts. He previously served as an associate attorney at the Oakland-based firm of Meyers, Nave, Riback, Silver & Wilson. Moutrie earned a B.A. in political science from the University of California, Berkeley, and a J.D. with honors from the University of California, Hastings College of the Law. See full bio.