On May 20, California's Occupational Safety and Health Standards Board delayed a vote on proposed changes to the COVID-19 Prevention Emergency Temporary Standards (ETS). At that time, the board claimed it would revise the ETS to address updated guidance from thse U.S. Centers for Disease Control and Prevention (CDC) for fully vaccinated people. However, the revised ETS passed by the board late on June 3 falls short of following all of the CDC's newest guidance and takes a more restrictive approach than previously proposed revisions.
The amended ETS will be submitted to the Office of Administrative Law (OAL) and the OAL has 10 calendar days to approve, just in time for the reopening of California on June 15. It is assumed the ETS will be approved by the OAL.
Here are the changes to the ETS that California employers should be aware of:
Employers looking to take advantage of the exceptions for social distancing and face coverings will also have to have effective documentation showing affected employees are fully vaccinated as required by the ETS. This will create some additional compliance obligations with respect to medical records and the protection of employees' private and confidential information.
- Respirators for unvaccinated employees: Effective July 31, employers must provide filtering facepiece respirators (i.e., National Institute for Occupational Safety and Health approved devices that are able to filter particulate matter, such as the N95s) to employees that are not vaccinated for voluntary use.
Employers should note that respirators are different from face coverings, in that respirators provide personal protection to the individual wearing the respirator. Face coverings, in contrast, are meant to provide source control. As a result of this requirement, employers will also need to comply with Title 8, Section 5144(c)(2), which has specific requirements for voluntary respirator use, such as providing certain information to users contained in Appendix D of Section 5144. Employers must similarly develop written procedures for employees to use respirators in the workplace that ensure employees' use of respirators does not pose a hazard and that respirators are used in a correct manner.
- Partitions: Partitions must continue to be used until July 31 to protect employees working indoors and at outdoor mega-events. One exception to this is to provide respirators for voluntary use in compliance with Section 5144(c)(2). After July 31, employers could remove partitions but would be required to reinstall them in the case of multiple COVID-19 infections or outbreaks in the workplace.
- Exclusion: Fully vaccinated employees that test positive for COVID-19 (or are otherwise considered a COVID-19 case) must still be excluded from the workplace until the return to work requirements (same as the prior ETS) are met. However, fully vaccinated employees no longer need to be excluded from the workplace due to a close contact, so long as they do not develop symptoms.
- Testing: Employers must continue to make COVID-19 testing available at no cost during paid time to all employees who have had a close contact except for those who are fully vaccinated before the close contact or certain individuals who have recovered from COVID-19.
California employers will need to carefully consider these new standards in developing their plans as the state moves toward reopening on June 15.
Sean Paisan is an attorney with Jackson Lewis in Orange County, Calif. Chris D. Schlag is an attorney with Jackson Lewis in Austin, Texas. © 2021 Jackson Lewis. All rights reserved. Reposted with permission.