Cal/OSHA Standards Board Begrudgingly Approves Controversial Changes to COVID-19 ETS

Seyfarth Synopsis: On June 3, 2021, the California Occupational Safety & Health Standards Board (OSHSB) voted late in the evening to approve Cal/OSHA’s proposed revised Emergency Temporary Standard (ETS). The revised ETS fails to align with the relaxed measures recommended by the CDC and the Governor’s plans to end virtually all mask and social distancing requirements for vaccinated individuals on June 15, 2021.

Background

As we previously blogged, last month Cal/OSHA published proposed revisions to its ETS. In a nutshell, the proposed revisions relaxed some of the more burdensome aspects of the ETS in light of the improving state of the pandemic. However, at its May 20, 2021, meeting, the OSHSB voted to delay the vote on the proposed revisions to the ETS so that Cal/OSHA could assess whether additional changes were warranted in light of the CDC’s May 13, 2021, updated guidance. That guidance, grounded in overwhelming scientific evidence, allows fully vaccinated individuals to forego masks and social distancing in most situations. On May 20, 2021, California announced that it would implement the CDC’s guidance on June 15, 2021, in a grand “reopening.”

Even the most cynical observers imagined that Cal/OSHA would more closely align the ETS with the CDC and the State’s public health authorities. But no—Cal/OSHA published its updated proposed revisions on May 28, 2021, and left the regulated community reeling. Some of the revisions were even more stringent than Cal/OSHA’s previous version. You can read more in our May 29, 2021, blog. 

What Just Happened?

June 3, 2021, was the OSHSB’s meeting to consider and vote upon Cal/OSHA’s updated revised ETS. The meeting was a marathon, starting at 10 am and lasting until nearly 8 pm. Countless commenters urged Cal/OSHA to reconsider its revisions, which lag behind the latest science and impose tremendous costs and other unworkable burdens, with little public health benefit. However, many employee groups urged the opposite—wanting the existing ETS to stay in place or arguing for even more stringent safety provisions.

For a moment, there was hope for California employers. Some members of the OSHSB were initially hesitant to pass the revised ETS, and the Board voted 4-to-3 to reject it (although members, like the public commenters, were split on whether they wanted the standards to be relaxed or strengthened). But then a sad truth quickly became apparent: if the revised ETS were not approved, then the regulated community would be stuck for many months to come with the current ETS that was implemented last November. The OSHSB then unanimously voted to reconsider, and it approved the revised ETS because, to sum up the rationale, “it’s not as terrible as the existing one.”

In passing the revised ETS, the OSHSB simultaneously voted to establish a subcommittee to work directly with Cal/OSHA to quickly draft a third version of the ETS, with the hope of presenting it as soon as the July meeting. The OSHSB also stated that Cal/OSHA may further refine the regulations in the coming weeks to take into account “the availability of vaccines and low case rates across the state.” Similarly, Cal/OSHA stated that it would be issuing FAQs prior to the enactment of the new ETS to address some of the myriad questions posed by the public during the meeting.

What Does This Mean?

The amended ETS will be submitted to the Office of Administrative Law (“OAL”), which will have 10 calendar days to approve. There’s little reason to believe that the OAL will not approve, so the revisions will likely go into effect around the same time as the State’s June 15, 2021 “reopening.”

Upon OAL approval, employers will be able to relax some of the measures required under the current ETS. But employers will still be stuck under the regulatory eye of an agency that isn’t ready to let California employers and employees fully keep pace with the rest of the country (or even the rest of the state outside of the workplace setting).

Some of the most notable requirements under the newly passed ETS are:

• Masks are still required, even for fully vaccinated employees, unless all persons in a “room” are fully vaccinated and do not have COVID-19 symptoms. Ironically, the revised ETS also requires employers to inform employees of “the fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.”
• When the revised standards take effect, employers can eliminate physical distancing and partitions or barriers for employees working indoors and at outdoor mega events, but only if they provide respirators, such as N95s, to unvaccinated employees for voluntary use.
  • After July 31, physical distancing and barriers are no longer required (except during outbreaks), but employers must provide all unvaccinated employees with respirators for voluntary use.
  • Note that Cal/OSHA said during the comments period that employers could choose what type of respirator to offer, so N95s are not specified.
• Immediately upon the revised ETS becoming effective, employers must 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.
• Fully vaccinated workers who test positive for COVID-19 still must be excluded from work for 10 days after the positive test, even if they are asymptomatic.
• After July 31, 2021, employers must provide respirators to all employees who are not fully vaccinated for voluntary use. This requirement is for the safety of unvaccinated employees.
  • Employees do not need to be fit tested for the respirators, which would be required if they were mandatory and not voluntary.
  • When the need for fit testing was raised during the meeting, Cal/OSHA said the requirement is based on “advanced filtration properties” of respirators, even without a proper fit, and likened this to the Wildfire Smoke Safety Standard.
  • Cal/OSHA also said that the July 31 timeline is so that “more people have a chance to get vaccinated” before some of the big protective measures sunset.
• Cleanable solid partitions must be maintained until July 31, 2021, for all employees working indoors or at outdoor mega events unless the employer provides all non-vaccinated employee with respirators for voluntary use.
  • Note that cleanable solid partitions continued to be required during an outbreak setting, so many employers are choosing to leave them in place rather than potentially have to reinstall them.
• Employers must notify employees of the benefits of the COVID-19 vaccine, including its  effectiveness in preventing serious illness or death, as well as inform employees about testing accessibility and proper respirator use.
• The definition of a sufficient face covering includes only a medical, surgical, or two-fabric layer mask, or respirator. This means that many of the decorative or stylish cloth masks that employees may have personally purchased will no longer meet the safety standard.
• Employers must provide free access to COVID-19 testing on paid time to symptomatic non-vaccinated employees, regardless of whether there was work-related exposure.

Beneficial employer provisions include:

• Fully vaccinated or naturally immune workers do not need to be excluded from work after a close contact so long as they remain symptom-free.
• Employers 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.
• Employees wearing a respirator under a Cal/OSHA-compliant respiratory protection program are exempt from individuals identified under the definition of a “close contact.”
• Employers do not need to offer COVID-19 testing to workplace close contacts if the potentially exposed employees are fully vaccinated or have natural immunity (previously infected within the prior 90 days), and they remain asymptomatic.
• “Outbreak testing” is no longer required when the local public health department identifies the workplace as the location of an outbreak.
• Now only COVID-19 positive employees count towards the number of individuals necessary to trigger an outbreak in a particular exposed group, rather than the prior broader definition that arguably could have included visitors, vendors, and other third parties.

How Do Employers Verify Vaccination Status?

The new ETS does 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.

But to be “fully vaccinated” under the ETS “means the employer has documentation showing that the person received, at least 14 days prior” either to the second dose of a two-dose regimen, or to 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.

While Cal/OSHA did not specify in the revised ETS what sufficient “documentation” would mean, discussions with the Division during the meeting centered around the idea of the employer viewing or taking copies of vaccination cards (as opposed to the “honor system” or employee attestation). Expect this to be addressed in upcoming FAQs.

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. During the June third meeting, Cal/OSHA indicated that it would be issuing guidance on some of the provisions of the new ETS.

Most notably, Cal/OSHA said a future FAQ would address permitting public-facing employees to go maskless if all of their co-workers were vaccinated, despite the unknown vaccination status of the maskless public entering the workplace, a subject of much contention and confusion during the meeting. Indeed, one OSHSB member, a college professor,  expressed skepticism of this dictate given the “mixed company” of her own students.

Workplace Solutions 

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.