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California Return to Work: Finally, New Revisions to the COVID-19 Prevention Emergency Temporary Standards

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California Return to Work: Finally, New Revisions to the COVID-19 Prevention Emergency Temporary Standards

The California state rules, which became effective June 15, 2021 (California’s “reopening”), eliminate capacity restrictions and social distancing and also permit fully vaccinated individuals to stop wearing masks in most situations.

The rules for the workplace, however, are governed by the highly controversial Cal/OSHA Emergency Temporary Standards (ETS). First enacted in November 2020, these Standards clash with CDC and CDPH guidance. After multiple attempts to revise the ETS, on June 17, 2021, Cal/OSHA adopted important revisions to the ETS, and Governor Newsom immediately signed an executive order enabling the revisions to take effect without the normal 10-day review period—finally providing clarity and consistency for employers and employees as California fully reopens its economy. The revised ETS is now in effect.

While the ETS remains focused on employers adhering to safety requirements to prevent the spread of COVID-19 in the workplace, the actual workplace rules for employees are more relaxed. Although not identical, they are similar to the CDC’s recommended protocols. The revisions allow fully-vaccinated employees the same freedoms as when they are off the job, including ending most mask requirements. Here are the highlights:

Face Coverings

  • Where an employer has “documentation” confirming that an employee is fully vaccinated, the employee can go without a face covering in most circumstances.
  • Cal/OSHA’s FAQs clarify that no specific form of documentation of vaccination is required, and identify the following acceptable options:

1) Employees provide proof of vaccination (vaccine card, image of vaccine card, or health care document showing vaccination status) and employer maintains a copy;

2) Employees show proof of vaccination to the employer, similar to the way an employee may show identification for I-9 purposes, and the employer maintains a record (e.g., a log) of the employees who presented proof, but not the vaccine record itself; or

3) employees self-attest to vaccination status, and employer maintains a record of who self-attests.

  • Whatever method the employer chooses to accept as proof of vaccination, the employer must make a record of vaccination status and keep such records confidential.
  • Employees for whom the employer lacks documentation confirming that they are fully vaccinated must be treated as unvaccinated for all purposes under the ETS, including exclusion, testing, face coverings, etc.
  • Note—Employers should remember to check and update workplace California Consumer Privacy Act (“CCPA”) notices related to gathering employee vaccination information, if applicable.
  • Face coverings are still required indoors and in vehicles for employees who are not fully vaccinated.
  • All employees must wear face coverings during an outbreak regardless of their vaccinated status. An outbreak is when you have three or more employee COVID-19 cases in an exposed group during a 14-day period.
  • Face coverings are not required outdoors (except during outbreaks when physical distancing cannot be maintained).
  • Employers must provide face coverings to employees who are not fully vaccinated.
  • Employees who are not fully vaccinated must be provided with, and encouraged to use, respiratory protection upon request for their voluntary use and trained on how to use the respiratory protection. Appropriate respirators include those approved by NIOSH—such as N95s, but not KN95s.
  • Respirators must also be provided for voluntary use to all employees, regardless of vaccination status, if a worksite is in a “major” outbreak status (i.e. more than 20 COVID-19 cases within 30 days in an exposed group).
  • Employers must remind their employees that they may wear face coverings at work regardless of vaccination status, without fear of retaliation.

COVID-19 Testing

  • Employers will not need to test fully vaccinated or naturally immune employees who are part of an exposed group in an outbreak, or who have had close contact at work with a COVID-19 case unless they have symptoms.
  • Employers must provide testing for all employees in an exposed group during “major” outbreaks, regardless of vaccination or symptom status.
  • Employers must provide free testing during paid working time to all employees who are not fully vaccinated who are symptomatic, regardless of any potential work-related exposure.

Physical Distancing

  • Cal/OSHA’s previous requirements involving physical distancing or barriers have been eliminated, except where there’s a “major” outbreak or an employee is not wearing a face covering as a reasonable accommodation.

COVID-19 Prevention Program/Training

  • The ETS includes updated training requirements, such as topics covering vaccinations, respirator availability/use/effectiveness, and when face masks must be used.
  • Employers must continue to have an effective written COVID-19 Prevention Program.
  • Cal/OSHA indicated that it will provide updated training materials as well as revised COVID-19 Model Prevention Programs in the near future on its website.

Best Practices

  • Employers should reevaluate current COVID-19 policies and procedures to ensure compliance with the new requirements.

For more information, please contact Laura P. Worsinger (213-457-1744 or lworsinger@dykema.com) or your Dykema relationship attorney. Dykema Labor & Employment lawyers can help you navigate through these complex rules and obligations.