Cal/OSHA Adopts New COVID-19 Rules to Take Effect Immediately

By Jennifer Suberlak, Esq., San Diego SHRM VP of Legislation

Cal/OSHA Adopts New COVID-19 Rules to Take Effect Immediately

              On June 17, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (“Cal/OSHA”) voted to adopt revisions to the COVID-19 Emergency Temporary Standard (“ETS”). Also on June 17, 2021, Governor Gavin Newsom issued an executive order making the revised ETS effective immediately. These regulations closely align with the State’s mask and social distancing guidance for the general public. Here are the highlights of the revised ETS:

Social Distancing Requirements Eliminated

              The revised ETS largely disposes of physical distancing protocols. Social distancing is still required when: unvaccinated employees are eating or drinking; a COVID-19 outbreak occurs; or an unvaccinated employee is unable to wear a face covering or a less restrictive alternative due to a medical condition or disability.

Face Coverings Requirements Relaxed

              Fully vaccinated employees no longer need to wear face coverings indoors, except for the places where California still requires everyone to wear a mask (e.g., while on public transit) or during a COVID-19 outbreak.

Unvaccinated employees must continue to wear face coverings, subject to these exceptions:

• When an employee is alone in a room or vehicle;
• While eating or drinking at the workplace, as long as employees are at least six feet apart and the outside air supply to the area, if indoors, has been maximized to the extent feasible;
• When an employee is wearing a respirator instead of a face covering;
• When the employee cannot wear a face covering due to a medical or mental health condition or disability, or when the employee is hearing impaired or communicating with a hearing impaired person; or
• When the employee is performing specific tasks that cannot be performed while wearing a face covering.

If a workplace suffers a COVID-19 outbreak, all employees must resume wearing face coverings and maintaining social distance, regardless of vaccination status.

New Definition of “Face Covering”

              The revised ETS defines “face covering” as a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers. The following items do not meet the definition of “face covering”: scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.

Respirator Requirements

             Per the updated regulations, employers must make respirators available for voluntary use to employees who are not fully vaccinated and who work indoors or in a vehicle with more than one person. The employer must provide the respirator at no cost to the employee. Employees must also be able to request a respirator without fear of retaliation.

              COVID-19 training must include information about respirators, including the employer’s policies for providing respirators, the right of employees who are not fully vaccinated to request a respirator for voluntary use, how to properly wear a respirator, and how to perform a seal check of a respirator.

Changes to Notice Requirements

              The initial ETS outlines detailed rules for providing notice of exposure to COVID-19. The revised ETS specifies that the employer must provide notice within one business day of the time the employer knew or should have known about a COVID-19 case. The employer must provide notice in writing, in a form readily understandable to employees, that people at the worksite may have been exposed to COVID-19. Acceptable notice may include personal service, email, or text message, as long as the employer can reasonably anticipate the employee will received the notice within one business day of sending. The employer must send the foregoing notice to all employees at the worksite during the high-risk exposure period, to independent contractors and other employers at the worksite during the high-risk exposure period, and to any authorized representatives (e.g., union representatives).

Exclusion of Exposed Employees

              Unlike the original ETS, employers no longer need to exclude an employee who had close contact with a COVID-19 case if the employee is fully vaccinated and does not develop symptoms. Similarly, employers need not exclude COVID-19 cases who have properly returned to work and have remained free of symptoms for 90 days after the initial onset of symptoms (or, if no symptoms developed, 90 days after the first positive test).

Return to Work Rules for Close Contacts

              According to the updated rules, an employee who had a close contact but experiences no symptoms may return 10 days after the date of the last known close contact. If an employee had a close contact but developed symptoms, then the employee may return when: (1) the employee tests negative for COVID-19; (2) at least 10 days have passed since the last known close contact; and (3) the employee has been symptom-free for at least 24 hours without using fever-reducing medication.

              Different rules apply for healthcare workers, emergency responders, and social service workers. During critical staffing shortages, such employees may return after day 7 from the date of last exposure, provided the employees test negative based on a specimen collected after day 5 and the employees do not develop symptoms.