A revised Cal/OSHA COVID-19 standard creates confusion

On May 28, 2021, the employer community got its first glimpse of a revised Cal/OSHA emergency, temporary standard (ETS) for COVID-19 that may become law by June 15, 2021. That day—June 15—is significant because it is the date the governor set as a goal for California to “fully open its economy.” In addition, the CDC’s new guidance allowing fully vaccinated persons to go maskless in some settings was another encouraging sign that normalcy was just around the corner. Indeed, Cal/OSHA had promised to tweak the existing COVID-19 standard with these developments in mind. Instead, the revised standard simply whittles around the edges, while maintaining restrictions even for the fully vaccinated that make little scientific sense. The California Occupational Safety and Health Standards Board will consider this revised ETS proposal at a public hearing on June 3.

The fully vaccinated remain subject to restrictions 

Under the revised ETS, Cal/OSHA would continue to require masking in the workplace, into late 2021 or early 2022, unless all individuals in a room are fully vaccinated and do not have COVID-19 symptoms. While this exception sounds promising in theory, it is fraught with practical problems, the most prominent being how a room of employees will reliably know if they are all fully vaccinated.

“Fully vaccinated” means “the employer has documentation showing that the person received, at least 14 days prior” the last dose of the COVID-19 vaccine. The standard does not require employers to ask its employees if they are vaccinated, unlike recently-enacted requirements in Oregon and Santa Clara County, but employers still may want to do so. The standard also does not specify what documentation is required, but the completed CDC card is the most obvious source of proof. It is not clear that an employee’s statement or attestation that she received the vaccine would be sufficient.

From an employment-law perspective, there is an added risk that employees, wanting to go maskless, may ask the follow-up question when someone in the room says he is not vaccinated: “well, why not?” This question may reveal confidential medical, disability, or genetic-related information about the employee. Employers need to remind employees that this line of questioning is not appropriate at work.

Moreover, this apparent loosening of restrictions on masking is in some apparent tension with the physical distancing requirement in the revised ETS. Until July 31, 2021, employers must keep employees (including the fully vaccinated) separated by at least six feet while they are working indoors or at “outdoor mega events” (defined as events with more than 10,000 participants or spectators), except in two scenarios:

1. For employees wearing respirators required by the employer and used in compliance with section 5144, the Cal/OSHA respirator standard.
2. When an employer provides respirators for voluntary use in compliance with section 5144(c)(2) for those employees who are not fully vaccinated.

Both exceptions to the physical distancing rules would require employers to distribute free N95 or equivalent respirators; other face coverings (including surgical masks) do not meet the requirements of section 5144. Employers who wish to avail themselves of the first exception must also have a detailed, written respiratory program with fit testing and medical evaluation prior to wearing the respirator. The second exception requires a less detailed written respiratory program, but must include provisions for employee medical evaluations and respirator cleaning and maintenance. Section 5144(c)(2) identifies other requirements.

Employers that do not have existing respiratory programs will more likely than not enforce the physical distancing rules rather than take on the added responsibilities of a respiratory program, at least until July 31, when a different requirement kicks in (see below). Note that there is no exception for the physical distancing requirement among the fully vaccinated, apparently even if they are in a room together and not required to wear a mask.

There are two other reasons employers may want to determine if employees are fully vaccinated. First, employers do not need to provide COVID-19 testing to fully-vaccinated employees who were exposed to an outbreak at work (three or more COVID-19 cases in a 14-day period). Second, starting July 31, 2021, “employers must provide respirators for voluntary use in compliance with subsection 5144(c)(2) to all employees working indoors or at outdoor mega events who are not fully vaccinated.” As noted above, this presumably will require a streamlined written respiratory program and supply of N95 respirators. The greater number of employees that are fully vaccinated (with proof), the less burden this requirement will entail.

Cal/OSHA selects July 31, not June 15, as the expected turning point for COVID-19 

Without citing evidence, Cal/OSHA has selected July 31, 2021 as the date when some of the workplace safety rules may be relaxed, presumably to account for a speculative COVID surge or mutation breakthrough. We expect Cal/OSHA will be pressed at the June 3rd hearing to explain itself, and we look forward to hearing the agency’s rationale.

As discussed above, until July 31, the proposed revisions require all employees working indoors or at outdoor mega events to be separated by at least six feet unless they are wearing N95 masks, which must be supplied by their employer. Commencing on July 31, employers would be required to provide N95 masks for voluntary use by employees working indoors or at outdoor mega events and who are not fully vaccinated.

COVID-19 training, testing, and other provisions of note

Under the revised ETS, employers would need to include in their training information about the availability of sick and vaccination leave, and that the “vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death."

If the revised ETS is approved, a “face covering” would no longer include “a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.” Employers would need to police the workplace to ensure that employees were wearing proper face coverings.

Additionally, employees in an outbreak situation would be tested for COVID only once per week instead of continuously as under the existing standard. Generally, employers would be responsible only for the COVID-19 cases involving their own employees, not members of the general public. This is welcome news for retail and restaurant industry employers who had objected to a prior version of the ETS which included members of the public in the definition of an outbreak. The revised ETS notes, however, that employees within an “exposed group” in an outbreak may include the employees of more than one employer at a work location.

We will provide an update after the Standards Board hearing on June 3.