Despite California’s Plan to Reopen on June 15, 2021, The Revised COVID-19 Emergency Temporary Standards Still Impose Restrictions in the Workplace

After an all-day meeting on June 3, 2021, the Cal/OSHA Standards Board approved revisions to the COVID-19 Emergency Temporary Standards (“ETS” or “regulations”). The Board first indicated a vote to reject the revised regulations, but then did a complete 180 and voted unanimously to approve them as a stop-gap measure while its newly-formed Board subcommittee worked to consider further revisions that are more in line with California’s Department of Public Health and  CDC guidelines.

Below are just some of the highlights from the revised ETS:

  • The revised ETS contain some new terms that are relevant when analyzing an employee’s exposure to COVID-19.

o   The term “Close contact” replaces the previous term “COVID-19 exposure.” “Close contact” is defined as “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the ‘high-risk exposure period’ defined by this section. This definition applies regardless of the use of face coverings.” (§3205(b)(1).)

o   The term “Exposed group” replaces the previous term “Exposed workplace.” “Exposed group” is defined as “all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period.  A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.” (§3205(b)(7).)

o   There are certain exceptions where individuals will not be considered to be in the “exposed group” – e.g. where a person momentarily passes through a place where everyone is wearing face coverings, where a person was not present at the same time (e.g. on a different shift) from the COVID-19 case, or where the COVID-19 case visited a work location or area for less than 15 minutes during the high-risk exposure period and everyone was wearing a face covering.

  • The “High-risk exposure period” is defined to mean the following time periods:

o   For COVID-19 cases who develop symptoms, from two days before they first develop symptoms until all the following are true: 10 days have passed since symptoms first appeared; 24 hours have passed with no fever, without use of fever-reducing medications; and symptoms have improved.

o   For COVID-19 cases who never develop symptoms, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.

  • The revised ETS have made clear in the definition of “Face covering” that scarfs, ski masks, balaclavas, bandanas, turtlenecks, collars, and a single layer of fabric do not suffice. (§3205(b)(8).)
  • The revised ETS define “Fully vaccinated” to mean that “the employer has documentation showing 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 or have an emergency use authorization from the FDA.” (§3205(b)(9)).

o   NOTE:  This definition seems to indicate that an employer can ask for proof of an employee’s vaccine status even if an employer is not mandating vaccines before employees return to work.  In this regard, the EEOC recently updated its COVID-19 FAQs on May 28, 2021, and appears to soften its position on an employer’s ability to seek proof of vaccines.  EEOC FAQ K-9 provides that it is not an improper “disability-related inquiry” for an employer to inquire about or request documentation or other confirmation that an employee obtained the COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public. However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential. (See “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” )

  • The revised ETS includes a definition of “Respirator” to mean a respiratory protection device approved by NIOSH to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator. (§3205(b)(12).)

o   NOTE: This definition is important, because under the revised ETS, as of July 31, 2021, all employers are required to provide respirators for voluntary use to all employees who are not fully vaccinated and working indoors or at outdoor mega events (with over 10,000 people).  (§3205(c)(8)(E)2.)

  • The revised ETS continue to require the use of face coverings when employees work indoors, or outdoors when less than six feet away from another person, and where required by the CDPH or local health department.  (§3205(c)(7).) However, some exceptions apply to the face covering mandate, including for example:

o   When an employee is alone in a room, or when all persons in a room are fully vaccinated and do not have COVID-19 symptoms.

o   While eating and drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent feasible.

o   Employees who cannot wear face coverings due to a medical or mental health condition or disability – in which case they are to wear an effective non-restrictive alternative such as a face shield with a drape on the bottom if their disability permits it.

o   Employees who are hearing-impaired or communicating with a hearing-impaired individual – in which case they should be at least six feet apart from all other persons unless they are either fully vaccinated or tested at least weekly for COVID-19.

o   Employees who perform specific tasks which cannot feasibly be performed with a face covering do not need to wear one during the time period in which they are performing the specific task.

  • As part of an employer’s response to a COVID-19 case at the place of employment, the revised ETS provide that employers shall make COVID-19 testing available at no cost, during paid time, to all employees who had close contact [with a COVID-19 case] in the workplace, and provide them with information on available benefits. (§3205(c)(B)(5).)

o   However, an employer does not need to provide the testing to employees who are fully vaccinated before the close contact and do not have COVID-19 symptoms, or to employees (who are the COVID-19 case) who return to work after the required quarantine time provided for in the regulations, and have remained free of COVID-19 symptoms for 90 days after the initial onset of COVID-19 symptoms, or 90 days after the first positive test if they never developed symptoms.  (§3205(c)(B)(5).)

o   If there are multiple COVID-19 infections (COVID-19 Outbreak) – which is defined as three or more employee COVID-10 cases within an exposed group during their high-risk exposure period at any time during a 14-day period, then the employer must make COVID-19 testing available at no cost to employees within the exposed group during paid time immediately upon knowledge of the outbreak, and then again once a week for employees in the exposed group who remain at the workplace, until there are no new COVID-19 cases detected in the exposed group for a 14-day period. (§3205.1.)

o   If there is a “Major COVID-19 Outbreak” – which is defined as 20 or more COVID-19 cases in an exposed group in the workplace during their high-risk exposure period within a 30-day period, then the testing must be made available twice per week until there are fewer than three COVID-19 cases detected in the exposed group for a 14-day period. (§3205.2.)

  • The revised ETS make some changes to the requirements for providing notice of potential COVID-10 exposure.

o   Within one business day of the time the employer knew or should have known of a COVID-19 case, the employer shall give written notice (e.g. email, text, personal service) to employees and independent contractors and other employers at the worksite during the high-risk exposure period, that they may have been exposed to COVID-19. (§3205(c)(3)(B)3.)

o   If an employer reasonably knows that an employee has not received the notice, or has limited literacy in the language used in the notice, the employer must provide verbal notice, as soon as practicable, in a language understandable by the employee.

o   Also, within one business day of the time the employer knew or should have known of the COVID-19 case, the employer must provide the separate COVID-19 notice required under CA Labor Code section 6409.6(a)(2) to the authorized representative of any employee at the worksite during the high-risk exposure period. (§3205(c)(3)(B)4.)

  • Employers must continue and maintain an employee’s earnings, wages, seniority, and all other employee rights and benefits if they are excluded from work pursuant to the requirements under the regulations.  Employers are permitted to use employer-provided employee sick leave if permitted by law to cover the employee’s wages and the wages must be paid at the employee’s regular rate of pay no later than the regular pay day for the pay period(s) in which the employee is excluded.  (§3205(c)(9)(C).)

o    No exclusion pay required if an employee receives disability or workers’ compensation payments or the employer can demonstrate that the close contact is not work-related.

There are a number of other changes contained in the revised ETS and a full copy of the 26-page revised regulations can be found here.

The revised ETS are due to take effect on June 15, 2021, the same day California plans to eliminate the State blueprint/closure order. However, a few things could happen before June 15th: (1) it is possible that the Standard Board’s subcommittee makes further revisions to the ETS (however, the Board is not scheduled to meet until June 17th); or (2) the Governor could issue an emergency executive order lifting some of the restrictions in the ETS so that they are more in-line with the State’s plan for reopening.

The Labor and Employment attorneys here at Weintraub Tobin will continue to monitor these developments.