In Episode 122 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank, and employment law experts Robert Moutrie and Matthew Roberts break down the new COVID-19 workplace directives issued by the California Division of Occupational Safety and Health (Cal/OSHA), which address face coverings, social distancing, COVID-19 vaccinations, and more.
Given the unpredictability of the COVID-19 pandemic, government guidance and mandates may be altered at any time. Information presented in this podcast is accurate as of June 23, 2021.
Below is a condensed summary of the podcast. To hear the full discussion of each topic, visit the time stamps noted in the article below.
Emergency Temporary Standard
Time Discussed: 01:11
The first round of the emergency temporary standards (ETS) issued by Cal/OSHA in response to the COVID-19 pandemic came down last November, and we are now seeing the first set of substantive changes to that original ETS, Moutrie tells podcast listeners.
On June 17, the Cal/OSHA Standards Board adopted a number of revisions to the ETS and Governor Gavin Newsom issued an executive order that made those revisions take effect immediately, Moutrie explains. Without the executive order, it would have taken an additional 10 days for the revisions to take effect.
Revisions to the ETS
Time Discussed: 04:40
The California Chamber of Commerce worked hard to advocate on behalf of businesses and identify problems as changes to the ETS were being proposed, Frank tells podcast listeners.
Some important changes that Moutrie, on behalf of CalChamber, helped get put into place are:
• Ending social distancing requirements immediately;
• Ending masking requirements for vaccinated employees, bringing the ETS into consistency with the Centers for Disease Control and Prevention (CDC) and California Department of Public Health (CDPH);
• Loosening disinfecting and cleaning requirements; and
• Lightening outbreak notification provisions. Under the new ETS, an “outbreak” is triggered only if three cases occur among employees, allowing businesses to exclude cases among customers.
Face Covering Rules
Time Discussed: 07:25
Roberts explains that under the new ETS directives, fully vaccinated employees who provide documentation do not have to wear a mask in most settings, except in:
• Public transit;
• K-12 educational facilities;
• Health care/long-term care settings;
• Shelters; and
• Law enforcement settings.
Unvaccinated employees will have to continue to wear masks if they work indoors or share vehicles with others. Although employees regardless of vaccine status do not have to wear a mask outdoors, Roberts recommends that employers still encourage unvaccinated workers who are outdoors and cannot socially distance to wear a mask.
Under the new ETS, “fully vaccinated” means that it has been two weeks since the employee received the second dose of their vaccine, or two weeks since receiving a single-shot vaccine, Moutrie says. In order to meet the requirements, the vaccine taken must be approved by the U.S. Food and Drug Administration or the World Health Organization (WHO).
Vaccine Documentation
Time Discussed: 11:00
Moutrie stresses that vaccinated employees must inform employers of their status, and employers must maintain documentation if the employees do not want to wear a mask at work.
An FAQ recently released by Cal/OSHA gives three examples of what would satisfy the ETS documentation requirement. Moutrie points out that these examples are just suggestions, and employers may choose to create a hybrid of the Cal/OSHA examples.
Roberts says that the three examples for documentation of vaccination status that Cal/OSHA provides are:
• The vaccinated employee provides proof by showing their vaccination card or medical record, and the employer keeps a copy of the record.
• The vaccinated employee presents documented proof, but the employer does not make a copy of the document. Rather, the employer documents a note that the employee presented proof of vaccination to the employer. This creates an internal record.
• The employer allows the employee to make a self-attestation and keeps a record of the self-attestation.
Providing Respirators
Time Discussed: 13:53
The new ETS requires that employers keep a stock of N95 respirator masks for unvaccinated employees who work indoors or in vehicles with other people, in case the unvaccinated employees request a respirator, Roberts explains.
Moreover, employers must have several sizes of the respirators on hand, Moutrie adds. Although employees do not have to have a fit test, having multiple sizes in stock ensures that the employee will have a mask that fits. The ETS also permits employers to ask unvaccinated employees if they want to wear an N95. If the worker says no, the employer can reduce the number of masks that are being stockpiled.
For the first month of compliance with the new ETS, Governor Newsom is providing businesses with N95 respirators free of charge from the state’s stockpile. For more information, visit saferatwork.covid19.ca.gov/n95-distribution/.
Physical Barriers, Testing, Notice Obligations
Time Discussed: 17:37
Frank stresses that even though many workplace requirements are easing, employers still need to have a COVID-19 prevention plan in place, either as a standalone policy or incorporated in an injury and illness prevention program.
Roberts points out that even though the new ETS eliminates social distancing requirements, employers should still assess their workplace operations and consider whether to remove all physical barriers.
Moutrie reminds employers that outbreak notification requirements are still in place, so if a business has an outbreak, requirements on masks, social distancing and physical barriers (such as plastic dividers) will come back into effect. Thus, employers should think about outbreak readiness and whether leaving some barriers up is more cost effective than removing all dividers and then having to put them back up if there is an outbreak.
Regarding paying for COVID-19 testing, the ETS requires employers to provide testing at no cost for unvaccinated employees — even if there is no “outbreak,” Roberts says. If a vaccinated employee has no symptoms, the employer is under no obligation to provide testing free of charge.
In wrapping up the podcast, Moutrie highlights a new addition to COVID-19 notice requirements. The ETS now requires that if an employer is aware that a worker did not receive a notice or has limited literacy in the language of the notice, then the employer must provide verbal notice as soon as practicable.
Links Mentioned in the Podcast
Cal/OSHA has combined its separate FAQs on the ETS, but is also making available an FAQ on the ETS revisions.
• The combined FAQ is available at www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html.
• The FAQ that addresses the June 17, 2021 revisions is available at www.dir.ca.gov/dosh/coronavirus/Revisions-FAQ.html.
For one month only, businesses can request N95 respirators free of charge. For more information, visit saferatwork.covid19.ca.gov/n95-distribution/.
