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CA: Cal/OSHA Adopts new Emergency Temporary Standards (ETS)

Following the June 17, 2021 vote by the Occupational Safety and Health Standards Board to adopt the revised COVID-19 Prevention Emergency Temporary Standards (ETS) which take into account vaccination status, Governor Gavin Newsom signed an executive order to allow the revisions to take effect immediately. The revised regulations reflect the state’s latest COVID-19 public health guidance for “fully vaccinated” individuals. Employers with in-person operations in California are subject to the ETS. Below is a summary of key updates to the ETS.

Documentation of Vaccination Status

To take advantage of the relaxed restrictions employers must have documentation of an employee’s vaccination status based on the definition of being “fully vaccinated.” Employers must “document” vaccination status for any employee not wearing a face covering indoors, and this record must remain confidential. The following are examples of acceptable methods to ascertain vaccination status:

  1. Employees provide proof of vaccination (vaccine card, image of vaccine card, or healthcare 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.

Accordingly, employers must decide how they will collect vaccination information if they wish to take advantage of the exceptions to safety protocols for fully vaccinated employees. However, employers can forego this process if they treat fully vaccinated employees and unvaccinated employees alike (e.g., masks required for all employees working indoors).

Like the CDC guidance, the ETS defines “fully vaccinated” to mean the employee has documentation showing that an individual received, at least 14 days prior, the second dose of a two-dose regimen, or a single dose of an FDA-approved or emergency authorized vaccine.

Other Updates

Other key updates to the ETS include the following:

  • Fully vaccinated employees do not need to wear face coverings in the workplace (unless there is an outbreak) but may choose to do so and employers must provide face masks upon request.
  • Fully vaccinated employees and employees who are tested at least weekly no longer need to follow physical distancing guidelines.
  • Employees who are not fully vaccinated must still wear face coverings while indoors or in vehicles, subject to certain limited exceptions; physical distancing, however, is only required indoors and when the employee is not wearing a face covering.
  • Employers must provide respirators (e.g., N95 mask) upon request for voluntary use to all employees who are not fully vaccinated and who are working indoors or in vehicles with more than one person, irrespective of the vaccination status of the other person(s) in the office or vehicle (Cal/OSHA has indicated that a training video on respirator use and fitting is forthcoming);
  • No physical distancing or barrier requirements regardless of employee vaccination status, except during an outbreak (defined as three or more cases in an exposed group of employees within a 14-day period) or major outbreak (defined as 20 or more cases in an exposed group of employees within a 30-day period).  For purposes of identifying an outbreak or major outbreak, cases are limited to those among employees at the worksite.
  • Employers must offer COVID-19 testing at no cost to employees during paid working time to: unvaccinated employees who have COVID-19 symptoms or have had close contact with a COVID-19 case at work; symptomatic vaccinated employees who had close contact with a COVID-19 case at work; and all employees in the case of a major outbreak at work.
  • COVID-19 testing during an outbreak requires employers to make available at no cost periodic (at least weekly or twice per week depending on the magnitude of the outbreak) COVID-19 testing to all employees within an exposed group during an outbreak, except for those employees who were not at work during the relevant period; vaccinated employees without symptoms; and (for a limited period) employees who recently recovered from COVID-19 and have not developed COVID-19 symptoms since returning to work.
  • The required quarantine period following close contact with a COVID-19 case will not apply to employees (i) who are fully vaccinated and asymptomatic or (ii) who have recovered from COVID-19 within the last 90 days.

Next Steps for Employers

Employers are still required to maintain a COVID-19 prevention program, including a written COVID-19 Prevention Plan; providing employees with COVID-19 training; providing pay continuation to employees who are excluded from the workplace due to COVID-19 (with some exceptions); continuing daily screening protocols; continuing cleaning protocols (with some modifications); and following statutory law and mandatory guidance regarding tracing, tracking and response efforts to any COVID-19 cases or outbreaks in the workplace.

Employers should review their COVID-19 safety protocols to determine the best solution for their workplaces, keeping in mind that employers are permitted, but not required to make exceptions for fully vaccinated employees; revise their written COVID-19 Prevention Plans to reflect any changes they have made; and update COVID-19 safety trainings to incorporate the changes in the revised ETS, particularly for fully vaccinated individuals.

Cal/OSHA is has issued updated Frequently Asked Questions explaining the new changes and employers should continue to monitor the FAQs published by Cal/OSHA for additional guidance and further clarity on other aspects of the ETS updates. It is expected that Cal/OSHA will release an updated Model COVID-19 Prevention Plan to address the changes to the ETS; if not, employers will need to ensure that they update their COVID-19 prevention program to address the modifications to the ETS.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.