Employment Law Bulletin | June 18, 2021

New Cal-OSHA Emergency Temporary Standards Take Effect Immediately for California Workplaces

As we predicted in our June 11 bulletin [1], Cal-OSHA appears to have worked out the kinks in its prior version of the revised Emergency Temporary Standards (“ETS”) and the Cal-OSHA Board has given the new regulations its stamp of approval.  Although the new and improved ETS were expected to take effect on June 28, 2021, Governor Newsom issued an Executive Order right after the Cal-OSHA meeting on June 17, 2021 making the ETS enforceable immediately.  Cal-OSHA’s updated FAQs on the regulations, issued in anticipation of the approval, can be found here [2].

Below is an updated chart that reflects the new changes in workplace requirements provided for in the new ETS.  If you are interested in learning more about the new ETS requirements and how they impact your business, we recommend that you contact an SMT employment law attorney.

Vaccination Documentation Fully vaccinated employees are no longer required to wear face coverings so long as the employer has documented the employee’s vaccination status.  Employees who refuse to state their vaccination status must be treated as unvaccinated.

The ETS fails to provide guidance on how to document vaccination status, but Cal-OSHA has issued the following approved methods in its FAQs:

  • 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.

Note: Nothing in the proposed revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.

Capacity Limitations and Ventilation Systems No specific capacity restrictions, however capacity must be limited if necessary to comply with physical distancing requirements.

Employers must now evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems.

Physical Distancing No physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:

  • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an “outbreak” (3 or more cases in an exposed group of employees)
  • Employers must implement physical distancing and barriers during a “major outbreak” (20 or more cases in an exposed group of employees)
  • An unvaccinated employee is not able to wear a required face covering and has not been tested weekly for COVID-19
Face Coverings NOT REQUIRED:

Fully vaccinated employees are no longer required to wear face coverings indoors, EXCEPT when there is an outbreak, in which case all employees are required to wear face coverings indoors and outdoors when a distance of six feet cannot be maintained.

No face coverings required outdoors, except in an outbreak, regardless of vaccination status.  However, employers are required to communicate that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained.

REQUIRED:

Unvaccinated employees are required to wear face coverings indoors and in vehicles, with the following limited exceptions:

  • the employee is in a room alone
  • the employee is eating and drinking at least six feet apart from other employees
  • when an accommodation is required
  • when job duties make a face covering infeasible or create a hazard

Face coverings are also required for employees working in public transit, K-12 educational facilities, health care and long-term care settings, correctional and detention facilities, and shelters (homeless or emergency shelters and cooling centers) for as long as the California Department of Health requires face coverings in those industries.

Employers must provide face coverings to unvaccinated persons and make them available to vaccinated persons upon request.

Respirators An employer must provide respirators, such as N95 masks, in two scenarios:

  • to any unvaccinated employee who works with others indoors or in a vehicle and who requests one; and
  • where there is a major outbreak, to any employees in the exposed group for voluntary use regardless of vaccination status. The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal,” or fit.

New Definitions

Cal-OSHA has redefined prior ETS definitions and created a few new terms in an effort to clarify the ambiguities of the ETS and address new developments in the COVID-19 pandemic as it relates to the workplace.  For example, employers now have better guidance on what it means to have a close contact with COVID-19 and who is considered fully vaccinated.  The definitions can be found in the initial section of the new ETS regulations [3].

New Testing Requirements

According to the ETS regulations and Cal-OSHA FAQs, Employers must continue to offer COVID-19 testing to employees during paid time in the following situations:

Unless there is a major outbreak, an employer does not have to offer testing after a close contact if the employee:

Notice and Investigation Obligations Continue

Employers familiar with the prior ETS know that one of the more onerous obligations was the one-day notice that was required to be delivered to potentially exposed employees, subcontractors, and independent contractors when a COVID-19 exposure occurred in the workplace.  This notice piggybacks on the requirements of AB 685, which remains in effect.  The new ETS makes clear that the notices and one-day turnaround time are still required.  A new development with respect to the notices is that if an employer “should reasonably know that an employee has not received the notice, or has limited literacy in the language used in the notice, the employer shall provide verbal notice, as soon as practicable, in a language understandable by the employee.”

If SMT previously created an AB 685/ETS compliant Protocol, Workplace Investigation and Notice packet for your business, please reach out to us so we can prepare an updated packet that complies with the new ETS requirements.  If you haven’t yet received a packet and would like to have one prepared so you will be ready to quickly investigate and notify your employees of a COVID-19 exposure in the workplace, please contact an SMT Employment attorney.

Excluding Workers from the Workplace

Under the new ETS (and the California Department of Health guidelines), fully-vaccinated employees no longer need to be excluded following a COVID-19 exposure in the workplace so long as they are not experiencing any COVID-related symptoms.  However, symptomatic employees, those who are diagnosed with or test positive for COVID-19, and employees who are otherwise ordered to isolate by a local or state health official, must continue to be excluded.

Exclusion Pay Refined

Under the revised ETS, employers must continue to ensure that excluded employees receive their full wages and maintain all benefits as if the employee had not been excluded from work.  However, the new ETS no longer requires that the employee be “otherwise able to work,” which means that excluded employees who are not receiving disability or worker’s compensation benefits are entitled to exclusion pay regardless of their ability to perform work.  Exclusion pay must be paid no later than the next regular pay date after the pay period(s) in which the employee is excluded.  If an employer denies exclusion pay based on an exception identified in the ETS, the employer must inform the employee that the pay is denied and the specific exception that applies.  The ETS now also provides that employees may seek recovery through procedures available in existing law, which could result in significant exposure for employers who are out of compliance.

Employer Provided Housing and Transportation

The new ETS makes clear that the restrictions related to employer-provided transportation apply when employees are travelling to and from work, different jobsites, delivery sites, buildings, stores, facilities or fields.  Employees who must share vehicles should also be assigned to distinct groups that are kept separate to the extent feasible.  However, the other physical distancing requirements have been eliminated in the employer-provided housing and transportation regulations and, where all employees are vaccinated, employers are exempt from the regulations altogether.

Conclusion

Although improved, these regulations are still cumbersome and challenging for California employers and the penalties for non-compliance are stiff.  If you have questions about how to comply with the new requirements, do not hesitate to contact an SMT Employment attorney.  We are here to help you.

Kari J. Brown [4]

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SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil [5]  | Lisa Ann Hilario [6] | Kari Brown [4]