Changes to Emergency Temporary Standards to Take Effect Immediately
On June 17, 2021, the Occupational Safety and Health Standards Board held a special meeting to adopt yet further revisions to the existing Emergency Temporary Standards first adopted in November of 2020. Governor Newsom promptly issued an Executive Order waiving the standard 10-day Office of Administrative Law review period, essentially making the new standards effective immediately.
Most notably the new ETS makes the following significant changes:
- Allows employers to permit fully vaccinated employees to work indoors without face coverings.
- Eliminates physical distancing requirement in non-outbreak settings.
- Requires employers to make available N95 respirators upon request to unvaccinated employees.
The adoption follows weeks of back and forth with the Board rejecting prior revisions to the original ETS and then reversing itself. But according to the Governor, these changes were an attempt to “align requirements related to physical distancing and face coverings with public health directives.” In response to mass public confusion regarding the different revisions, as well as the extent of ongoing obligations to minimize COVID-19 transmission at work, Cal/OSHA published FAQs prior to the adoption of the revised ETS. California employers should review the latest information on the revisions in Cal/OSHA’s Frequently Asked Questions.
Best Practices for Verifying Vaccination
According to the ETS, vaccination status must be documented by the employer for any employee not wearing a face covering indoors. However, the proposed revised ETS does not specify a particular method. As set forth in the FAQs, acceptable options include:
- Employees provide proof of vaccination (vaccine card, image of vaccine card, or health care document showing vaccination status) and the 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 the employer maintains a record of who self-attests.
The record of who is vaccinated must be kept confidential. Since there are additional confidentiality issues related to maintaining proof of vaccination cards or documents, many employers are choosing not to collect copies of those records but simply designating a confidential employee such as an HR Professional or Manager to review the record and document such or collect record of self-attestation.
An employee has the right to decline to state if they are vaccinated or not. In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.
Employers cannot retaliate against workers for wearing face coverings, including when the worker is wearing a face covering voluntarily. Also, nothing in the revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.
What is the Employer’s Duty Regarding Respirators?
One of the more controversial requirements of the revised ETS was the requirement that an employer provides respirators in two scenarios: (1) to any unvaccinated employee who works with others indoors or in a vehicle and who requests one and (2) where there is a major outbreak, to any employees in the exposed group for voluntary use. Yet, there is no requirement that an unvaccinated employee wears such a respirator.
The FAQs clarified that to “provide respirators upon request” an employer may either stock respirators and offer them to employees or may poll workers to determine which employees wish to be provided a respirator before obtaining them. However, once an employer has established that it has employees who wish to wear respirators, it should have enough on hand of the correct size and type to fulfill reasonably foreseeable requests upon demand. If an employee prefers to select and purchase his or her own respirator, an employer may permit this alternative, as long as the employer reimburses the employee in a timely manner. Furthermore, in a major outbreak, respirators must be offered to employees regardless of vaccination status and without waiting for a request from the employee. The employer must offer respirators immediately upon determining a major outbreak is underway.
Employers should be advised that respirators must be the right size, and the employee must receive basic instruction on how to get a good “seal” or fit.
Requirements from the November 2020 ETS that Will Remain
While much talk relates to what has changed in the revised ETS, many provisions remain in place. The ETS still requires:
- An effective written COVID-19 Prevention Program.
- Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
- Providing notification to public health departments of outbreaks.
- Providing notification to employees of exposure and close contacts.
- Requirements to offer testing after potential exposures.
- Requirements for responding to COVID-19 cases and outbreaks.
- Quarantine and exclusion pay requirements.
- Basic prevention requirements for employer-provided housing and transportation.