By Coby Turner, Patrick D. Joyce, Ilana Morady, Adam R. Young, and Elizabeth M. Levy
Seyfarth Synopsis: The California Occupational Safety & Health Standards Board (OSHSB) was supposed to consider changes to the COVID-19 Emergency Temporary Standard (ETS) on May 20, 2021. But after the CDC published a May 13, 2021 guidance saying that fully vaccinated individuals could resume pre-pandemic activities without masks, Cal/OSHA asked the OSHSB to delay its consideration of the proposed ETS revisions until Cal/OSHA could “revisit the proposed COVID-19 prevention emergency regulation in light of this new guidance.” Cal/OSHA has now published its new draft regulations, which appear to be more strict than the prior proposal. The OSHSB will consider the new proposal at its June 3, 2021, meeting.
In the fast-paced and ever-changing environment of COVID-19 regulation, the story of Cal/OSHA’s ETS is becoming more and more convoluted. If you read our May 12, 2021, blog, you know that earlier this month Cal/OSHA published proposed revisions to its ETS. The proposed revisions were a significant move in the right direction, relaxing some of the more burdensome aspects of the ETS in light of the improving state of the pandemic. The OSHSB was scheduled to consider and vote upon the proposed revisions at its May 20, 2021 meeting.
But then, on the eve of the meeting, Cal/OSHA submitted a memorandum to the OSHSB asking that consideration of the proposed revisions be deferred. Cal/OSHA cited the CDC’s May 13, 2021 guidance allowing fully vaccinated individuals to forego masks in most situations, as well as the May 20, 2021 California Health & Human Services announcement that California plans to implement the updated CDC guidance starting June 15, 2021. The memorandum explained, “The Division is thus requesting that the Board not vote to approve the current proposal before it, and instead allow us to present a new proposal at a future meeting. The Division will limit any potential changes to consideration of the recent guidance, in order to make possible a targeted effective date of June 15, 2021.”
The new proposal has now been published (and here is a redline to the prior proposed changes), and the OSHSB is scheduled to consider it, and vote, at the upcoming June 3, 2021 meeting.
What Has Changed from the May 20 Proposal?
The revised proposal misses many of the most sought-after updates related to mask usage, and in fact appears stricter on many measures than the last proposal, despite relaxed measures recommended by the CDC. Changes from the earlier proposal include:
- Employers cannot immediately eliminate physical distancing requirements for fully vaccinated worksites—they must keep these measures in place until at least July 31, 2021.
- Employers would be immediately required to offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no indication that the exposure was work related (the previous iteration did not start this requirement until July 31, 2021).
- Fully vaccinated workers who test positive for COVID-19 would still have to be excluded from work for 10 days after the positive test, even if they are asymptomatic.
- After July 31, 2021, employers would have to provide respirators to all employees who are not fully vaccinated for voluntary use.
- Employers would not be able to eliminate cleanable solid partitions in fully vaccinated worksites.
The revisions also include provisions aimed at maintaining mitigation measures for employees at “outdoor mega events,” which is an outdoor event with over 10,000 participants or spectators. Finally, OSHSB added a provision requiring employers to notify employee of the benefits of the COVID-19 vaccine, including that the vaccine has been effective at preventing serious illness or death (in addition to the information required in the prior proposal related to testing accessibility and proper respirator use).
The revisions do not require blanket vaccine-verification, of employees or third parties, along the lines of the onerous requirements we have seen in Oregon and Santa Clara, as many employers thought may be included.
But to be “fully vaccinated” for purposes of the limited changes in the new proposed ETS, it “means the employer has documentation showing that the person received, at least 14 days prior” either the second dose of a two-dose regimen, or a single dose of an FDA approved or emergency authorized vaccine. This is also a departure from the CDC definition of “fully vaccinated,” which includes World Health Organization approved or emergency authorized vaccines. So, if you have employees coming in from abroad that have received the AstraZeneca or Sinopharm vaccines, they technically do not meet the qualifications under the proposed ETS and would have to be treated as if they were unvaccinated.
What’s The Same?
Unfortunately, OSHSB appears to have missed its biggest opportunity to align with CDC’s May 13 guidance: employees who are fully vaccinated still must wear face coverings while indoors and in mixed company with employees who are not fully vaccinated. This restriction is contrary to CDC’s May 13 guidance.
But various items from the prior proposed version of the ETS remain in place, including:
- Fully vaccinated or naturally immune workers would not need to be excluded from work after a close contact so long as they remain symptom-free.
- Employers still can provide employees who are not fully vaccinated with respirators for “voluntary use” to avoid having to enforce six-feet physical distancing for those individuals.
- Employers would no longer need to offer COVID-19 testing to workplace close contacts if the potentially exposed employees were fully vaccinated or had natural immunity (previously infected within the prior 90 days).
- The definition of a sufficient face covering would include only a medical, surgical, or two-fabric layer mask, or respirator—meaning many of the fancy masks that employees may have personally purchased will no longer meet the safety standard.
- “Outbreak testing” would no longer be required when the local public health department identifies the workplace as the location of an outbreak—which could eliminate the challenge many employers have faced with inconsistency in how local public health departments identify outbreaks.
- Individuals wearing a respirator under a Cal/OSHA-compliant respiratory protection program would be exempt from individuals identified under the definition of a “close contact.”
- Notifications related to close contacts or outbreaks would be required to be given in a language the employee understands, and verbal notice would be permissible.
What Else Do I Need to Know?
Remember that Cal/OSHA continues to update its interpretive guidance on the ETS via its Frequently Asked Questions page.
The full text of the proposed revision to the ETS can be found here and a comparison with the May 20 proposal can be found here. It’s likely the Standard Board will vote on June 3, 2021. It’s anticipated that the revised ETS would become effective on or around June 15, 2021, to align with the State’s “re-opening.”
Remember to check in with your Seyfarth counselors regularly, as this is a rapidly developing area of law. If you need any assistance with your workplace safety planning, or have questions about requirements related to testing, quarantine, or how to pay workers that are out sick with COVID-19, please feel free to reach out to the authors of this post. Seyfarth can also assist with compliance counseling if you are considering implementing mandatory vaccination programs or creating incentives for your employees to be vaccinated