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Will Cal-OSHA Finally Adopt Revised COVID-19 Emergency Temporary Standards?June 16, 2021
If you are wondering where Cal-OSHA’s revised COVID-19 emergency temporary standards are, you are not alone. For nearly a month now, employers have been waiting anxiously for the Cal-OSHA Standards Board (the “Board”) to adopt new regulations that will impact California employers and their employees in significant ways. The wait could soon be over, but then again, you have heard that before with these regulations.
The Board had adopted a revised version of the COVID-19 regulations on June 3 only to then withdraw those regulations during a special meeting six days later. Before that, the Board considered a different version of the regulations on May 20 that it was fully expected to adopt, but ultimately declined to do so. The Board will now meet this Thursday, June 17, to consider a third version of the revised regulations. Normally, if the Board were to adopt those regulations at that meeting, they would not be effective until the California Office of Administrative Law (the “OAL”) approved them, which it has up to 10 days to do. That would mean the revised regulations would likely take effect on or before June 28. Governor Gavin Newsom, however, commented late last week that he was considering executive action to have those revised regulations take effect upon their adoption by the Board. Either way, the revised regulations should be effective in reasonably short order. For that reason, we provide a link to a copy of the new proposed regulations showing the changes from the current emergency regulations. We also highlight below eight key changes that California employers will want to be prepared to implement as soon as the regulations take effect:
- Face Coverings – Face coverings are no longer required for all employees in the workplace—only for those employees who are not fully vaccinated. For unvaccinated employees, employers must still provide them with face coverings and ensure they are worn over the nose and mouth when indoors or in vehicles. The following are not considered face coverings: “a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.”
- Exclusion of Employees in Close Contact – Fully vaccinated employees without symptoms and employees who had COVID-19 and have been symptom-free for either 90 days after the initial onset of COVID-19 symptoms or for 90 days after their first positive COVID-19 test and continue to be symptom-free after close-contact with a COVID-19 case are no longer required to be excluded from immediately returning to the workplace after being in close contact with a COVID-19 case. For all other employees, they are still excluded from the workplace and “may return to work when 10 days have passed since the last known close contact,” so long as they are symptom-free. Different rules apply for employees who experience symptoms.
- Social Distancing – Social distancing of six feet between employees is no longer required. This means there is no longer a requirement for “visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path or travel,” “staggered arrival, departure, work, and break times,” or the installation of “solid partitions” at fixed, communal work locations. Social distancing of six feet, however, may still be required in some instances, such as when an unvaccinated employee cannot wear a face covering for a medical reason or when an employer experiences a COVID-19 “outbreak,” with three or more employees testing positive at once.
- Documentation of Vaccination – “Fully vaccinated” is now defined to mean “the employer has documented that 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.” To obtain an employee’s vaccination status, the employer must have documentation, but the regulation does not explain what type of documentation satisfies this requirement. For example, the regulation does not explain whether an employee can complete a self-verification form or whether employees must turn in a copy of a vaccination card. Cal-OSHA is expected to address this issue in its FAQ guidance following adoption of the regulation.
- Providing Respirators – Upon request, employers must provide respirators to those employees who are not fully vaccinated and “working indoors or in vehicles with more than one person.” A “respirator” is defined to include “an N95 filtering facepiece respirator.”
- Providing COVID-19 Testing – Employers must make COVID-19 testing available to symptomatic employees who are not fully vaccinated. Such testing must be free of charge and made available during employees’ paid time.
- Providing Employee Training – Employers must continue to provide COVID-19 training to all employees, now with the following additional topics: (1) information on the employer’s policies for providing respirators and the “right of employees who are not fully vaccinated to request a respirator for voluntary use . . . without fear of retaliation and at no cost”; (2) information on the employer’s COVID-19 policies, how to access testing and vaccinations, and the fact that vaccinations are effective at preventing COVID-19; and (3) when face coverings must be worn at the workplace, “that face coverings are additionally recommended outdoors for people who are not fully vaccinated if six feet of distance between people cannot be maintained,” and that employees can request face coverings for free and wear them at work without fear of retaliation.
- Providing Notice of a COVID-19 Case – When there is a confirmed COVID-19 case, employers must provide written notice to all employees at the worksite communicating “that people at the worksite may have been exposed to COVID-19” within one business day of learning about the COVID-19 case. A “worksite” for this purpose is defined as the location where a COVID-19 case was present during the high-risk exposure period, and does not include “buildings, floors, or other locations of the employer that a COVID-19 case did not enter.” The regulation clarifies that the main objective of the notice is for employees to understand it quickly and clearly: the written notice can be communicated in any format, so long as it can reasonably be anticipated to be received by the employee within one business day of being sent. If an employer suspects an employee has not received the message or cannot adequately understand the language it was sent in, the employer must now verbally tell the employee as soon as possible.
Employers will also want to review the revised regulations on COVID-19 outbreaks, employer-provided housing, and employer-provided transportation. As noted above, employers should keep an eye out on Thursday, June 17 for the adoption of these regulations and for either Governor Newsom or the OAL to take action to put them into effect in short order.
This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Eric Amdursky, an O'Melveny partner licensed to practice law in California, Apalla U. Chopra, an O'Melveny partner licensed to practice law in California, Adam J. Karr, an O'Melveny partner licensed to practice law in California, Allan W. Gustin, an O'Melveny counsel licensed to practice law in California, and Alexis M. Fasig, an O'Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.
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