Easy As 1-2-3: Cal/OSHA Approves Third Emergency Standard Revision to Align With State Public Health Guidance

In its third change in as many weeks, the California Occupational Safety and Health Standards Board, the standard-setting agency within Cal/OSHA, approved revisions to the November 30, 2020 emergency COVID-19 prevention standards. Per an Executive Order signed by Governor Newsom on the same day, these revisions are not subject to a 10-day review period by the Office of Administrative Law, and go into effect immediately.  These revisions come after Cal/OSHA approved a different set of revisions on June 3 and withdrew those on June 9.

The revisions bring the emergency standards in line with recent guidance from the California Department of Public Health, eliminating capacity limitations and following CDC guidance on face coverings. The newly approved revisions update the definition of “fully vaccinated” to require that “the employer has documented” that the employee is at least 14-days past their second or single-dose COVID-19 vaccine. Employees who have not provided documentation of their vaccinated status must be treated as if unvaccinated for the purposes of the emergency standard.

Key aspects of the revised standards are:

• Fully vaccinated employees do not need to wear face coverings in the workplace, unless there is an outbreak (3+ cases in 14 days) or major outbreak (20+ cases in 30 days), or if California Department of Public Health requires them in a particular situation (e.g. public transit, health care facilities, correctional facilities).
• Employees, whether vaccinated or not, do not need to wear face coverings when outdoors, other than during outbreaks of COVID-19.
• A fully vaccinated employee may wear a face covering without the risk of retaliation.
• Employers must provide, upon request from any employee, a respirator (such as N95 masks) for voluntary use at no cost to the employee. (If N95’s are provided, employees must also be trained in proper fit, care and use.)
• Fully vaccinated employees (or those who had COVID-19 in the past 90 days and are recovered) who are exposed to a COVID-19 case do not need to be offered COVID-19 testing nor excluded from the workplace if they do not have COVID-19 symptoms, unless during a major outbreak. Unvaccinated employees must still be provided testing and be excluded.
• Employees who have tested positive for COVID-19 may return to work ten days after the onset of symptoms or first positive test, if the employee has been symptom free for at least 24-hours without fever-reducing medication, and symptoms have subsided. An employee who has been excluded from the workplace because of close contact with a COVID-19 case, but has not developed symptoms may return after a negative PCR test, 10 days after the close contact, and 24-hours without symptoms and fever-reducing medication.
• Physical distancing requirements are eliminated immediately, including partitions. In a major outbreak, physical distancing and partitions must be used.
• Employees may bring a wage claim to recover unpaid earnings accrued while excluded from the workplace due to COVID-19 exposure pursuant to the emergency standards. Employers must pay employees their regular rate of pay by the next regular pay day for earnings accrued while the employee is excluded from the workplace. If the employer determines that an exception to payment during exclusion—the employee is receiving disability payments, is covered by workers’ compensation, or the employer can demonstrate close contact was not work-related—the employer must notify the employee of the denial and applicable exclusion.
• Employer-provided transportation and housing do not need to follow the emergency standard if all employees in the housing or who are using the transportation are fully vaccinated.
• Employers must review California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments and evaluate ventilation systems to increase filtration efficiency.
• Employers must report COVID-19 cases and outbreaks to the local public health department.
• Employers must provide training on employer COVID-19 policies, COVID-19 related benefits, proper use of respirators, COVID-19 transmission and safety, information on testing and vaccination access and effectiveness, conditions during which face coverings must be worn, and employee rights to request and wear face coverings.

A key consideration is how employers will comply with the new requirement to document employee vaccination.  Under the revised standards, employers are required to document if an employee is fully vaccinated. The Frequently Asked Questions identify three possible approaches for documentation:

(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 provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.

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

Employers may also continue to require face coverings for all employees, instead of documenting employee vaccination.

As was the case under the previous, repealed revision, the new standard maintains the requirement that an employer must provide verbal notice to the employee in a language the employee understands, if an employer reasonably should know that an employee has not received the notice of a positive COVID-19 case, or if the employee has limited literacy in the language of the notice.

Updated Frequently Asked Questions are available, reflecting the revisions to the emergency temporary standard. Cal/OSHA is currently working to update its model COVID-19 Prevention Program document, as employers must continue to maintain such a Program.