On June 17, 2021, the California Occupational Safety & Health Standards Board (the Cal/OSHA Board) voted to approve a set of new modified COVID-19-related workplace emergency regulations, found here. The new modified regulations will need to be approved within ten days by the state Office of Administrative Law, which is expected to approve the rules. Governor Newsom has also indicated that he may approve the rules immediately. 

These regulations replace more stringent regulations that were inconsistent with the latest guidance issued by the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health regarding physical distancing and mask wearing for fully vaccinated individuals.

Under the new regulations, for an employee to be considered fully vaccinated, the employer must have documentation showing the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Employees may provide proof of vaccination or may self-attest. Employers must maintain a confidential record of the vaccination status of employees.  Employers have the option of keeping a record of employees who presented proof, a record of employees who self-attest, or a copy of the actual vaccination card or health document showing vaccination status. Vaccines must be U.S. Food and Drug Administration (FDA) approved, have an emergency use authorization from the FDA, or for individuals vaccinated outside the United States, they must be listed for emergency use by the World Health Organization (WHO). The prior regulations did not address vaccines administered outside the United States.

Physical Distancing

Physical distancing requirements have largely been removed from the COVID-19 emergency regulations. However, physical distancing rules separating workers by at least six feet will still apply around employees who are not fully vaccinated and who are not wearing a mask or an approved alternative, and who are not being tested at least weekly for COVID-19. Such testing must take place during paid time and without charge to the employee. Physical distancing rules will also apply when not fully vaccinated employees are eating or drinking and after outbreaks of more than 20 cases in an exposed group of employees. Employers are required to consider whether distancing measures are needed after an outbreak of three or more cases in an exposed group of employees.

Face Coverings

When indoors, workers who are not fully vaccinated will continue to be required to wear a face covering, unless they are alone in a room or vehicle. When outdoors, face coverings are recommended for those who are not fully vaccinated if six feet of distance cannot be maintained between people. 

Unless wearing a face covering presents a safety hazard, employees may wear face coverings at work even if fully vaccinated, without fear of retaliation. The definition of a sufficient face covering includes only a surgical mask, medical procedure mask, a tightly woven fabric or non-woven material of at least two layers, or a respirator (N95 mask) worn voluntarily.

Employers do not have to provide employees with respirators (N95 masks), as required in the prior drafts of the new regulations. Instead, employers must provide respirators (N95 masks) only upon request by an unvaccinated employee, for voluntary use when working indoors or in vehicles with more than one occupant. Employers must also provide non-respirator face coverings for employees who are not fully vaccinated and ensure they are worn over the mouth and nose indoors and in vehicles, unless the unvaccinated employee is alone in a room or vehicle, or is eating or drinking (provided at least six feet of distance from other employees is maintained). Employers must also provide face coverings upon request, regardless of vaccination status.

Individuals wearing a respirator (N95 mask) under a Cal/OSHA-compliant respiratory protection program will be exempt from individuals identified under the definition of “close contact.” The regulations use the term “close contact” instead of “COVID-19 Exposure,” making the terminology more consistent with that used in the CDC guidance. “Close contact” means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period, regardless of the use of face coverings. 

COVID-19 Prevention Plan

Employers are still required to have a written COVID-19 prevention plan, which may be separate or a part of the employer’s Injury and Illness Prevention Program. The plan must now include information on how the vaccine is effective at preventing COVID-19 and protecting against both transmission and serious illness or death. Further, it is recommended that the plan be updated to reflect the various changes made by the new regulations. The plan should incorporate all applicable orders and guidance including the California Department of Public Health’s Interim Guidance for Ventilation, Filtration and Air Quality in Indoor Environments.

Additional Changes

• Employers will no longer need to offer COVID-19 testing during paid time, at no charge to the employee, to workplace close contacts if the potentially exposed employees were fully vaccinated and have no COVID-19 symptoms or to an employee who was previously infected within the prior 90 days and has remained free of symptoms for 90 days after the initial onset of symptoms, or for those who were infected but never developed symptoms, for 90 days after the first positive test.
• Notifications related to close contacts or outbreaks are still required to be given in writing, in a form readily understandable by employees. Written notice may include personal service, email or text message if it can be reasonably anticipated to be received within one business day by the employee. The notice must include the disinfection plan that the employer plans to implement and complete per CDC requirements. If the 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 must provide verbal notice as soon as practicable in a language understandable to the employee.
• Following close contact or outbreaks, employers will be required to offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no evidence that the exposure was work-related.
• Fully vaccinated workers without COVID-19 symptoms will not need to be tested or excluded from the workplace after a close contact.
• Special COVID-19 prevention measures that apply to employer-provided housing and transportation will no longer apply if all occupants are fully vaccinated.

Employers should note that failure to comply with the various requirements may expose an employer to a potential serious and willful claim, and citations from Cal/OSHA. 

For additional information, employers may wish to consult Cal/OSHA’s Frequently Asked Questions found here.

UPDATE: Shortly after the vote by Cal/OSHA, Governor Gavin Newsom signed an executive order allowing the revised regulations to take immediate effect. The executive order avoids the usual 10-day delay associated with review and approval by the state Office of Administrative Law. 

The author would like to gratefully acknowledge the assistance of Joanne Warriner.

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