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Cal/OSHA Readopts Amended COVID-19 Emergency Temporary Standard

June 18, 2021
regulatory advisories
advisory
regulatory

On Thursday, June 17th, the Cal/OSHA Standards Board voted to readopt the modified Emergency Temporary Standard (ETS) for COVID-19 prevention. The previous version of the text, taken up by the Board during their June 3 meeting, was pulled from the Office of Administrative Law (OAL) for additional changes to be discussed and to provide consistency with the guidelines issued by the California Department of Public Health (CDPH) for the state’s reopening. 

Typically, the proposal would be resubmitted to the OAL, where they would have ten calendar days to review and decide whether they will file the regulation with the Secretary of State. However, Governor Newsom signed an Executive Order bypassing the OAL’s review period thereby making the regulations effective immediately.

The ETS applies to all employees and places of employment, with the following exceptions:

  • Work locations with one employee who does not have contact with other persons.
  • Employees working from home.
  • Employees with occupational exposure as defined by section 5199, when covered by that section.
  • Employees teleworking from a location of the employee’s choice, which is not under the control of the employer.

Below are some of the changes in the revised ETS:

  • Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
  • No face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers should be trained on CDPH recommendations for outdoor use of face coverings.
  • Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status. There are some settings where CDPH requires face coverings regardless of vaccination status. In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
  • Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request.
  • Employers may not retaliate against employees from wearing face coverings.
  • No physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
    • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
    • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
  • No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
  • Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations.
  • Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems.

Under the ETS, “fully vaccinated” means 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. Vaccines must be FDA approved; have an emergency use authorization from the FDA; or, for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO). There is no particular method specified for documenting vaccination status in the revised ETS, but acceptable options include:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and employer maintains a record of who self-attests.

Additionally, an employer is not obligated to require employees to submit proof of being fully vaccinated under the ETS. Absent such a requirement, an employee has the right to decline to state if they are vaccinated or not. In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.

Businesses seeking assistance to provide N95 respirators for unvaccinated employees as required by the revised Emergency Temporary Standards can find distribution locations for state-provided N95 respirators here.

Information on Cal/OSHA’s COVID-19 ETS can be found here.

For additional questions please contact mmartinez@calstrawberry.org

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