Cal/OSHA’s Emergency Temporary Standards (“ETS”) has endured a long road to adoption. Following withdrawal of an initial revision of the ETS that was nearly universally panned, Cal/OSHA issued new revisions on June 11, 2021. Cal/OSHA has since clarified such revisions through the FAQs.
What Exactly Are The Rules Now?
- Where an employer has “documentation” confirming that an employee is fully vaccinated, the employee can go without a face covering in most circumstances.
- Cal/OSHA’s FAQs clarify that no specific form of documentation of vaccination is required, and identify the following acceptable options: 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 show proof of vaccination to the employer, similar to the way an employee may show identification for I-9 purposes, and the employer maintains a record (e.g., a log) of the employees who presented proof, but not the vaccine record itself; or 3) employees self-attest to vaccination status and employer maintains a record of who self-attests.
- Whatever method the employer chooses to accept as proof of vaccination, the employer must make a record of vaccination status and keep such records confidential.
- Employees for whom the employer lacks documentation confirming that they are fully vaccinated must be treated as unvaccinated for all purposes under the ETS, including exclusion, testing, face coverings, etc.
- Face coverings are still required indoors and in vehicles for employees who are not fully vaccinated.
- All employees must wear face coverings during an outbreak regardless of their vaccinated status. An outbreak is when you have 3 or more employee COVID-19 cases in an exposed group during a 14-day period.
- Face coverings are not required outdoors (except during outbreaks when physical distancing cannot be maintained).
- Employers must provide face coverings to employees who are not fully vaccinated.
- Employees who are not fully vaccinated must be provided with, and encouraged to use, respiratory protection upon request for their voluntary use, and trained on how to use the respiratory protection.
- Respirators must also be provided for voluntary use to all employees, regardless of vaccination status, if a worksite is in a “major” outbreak status (i.e. more than 20 COVID-19 cases within 30 days in an exposed group).
- Employers must remind their employees that employees may wear face coverings at work regardless of vaccination status, without fear of retaliation.
- Employers will not need to test fully vaccinated or naturally immune employees who are part of an exposed group in an outbreak, or who have had a close contact at work with a COVID-19 case, unless they have symptoms.
- Employers must provide testing for all employees in an exposed group during “major” outbreaks, regardless of vaccination or symptom status.
- Employers must provide free testing during paid working time to all employees who are not fully vaccinated who are symptomatic, regardless of any potential work-related exposure.
- Cal/OSHA’s previous requirements involving physical distancing or barriers have been eliminated, except where there’s a “major” outbreak or an employee is not wearing a face covering as a reasonable accommodation.
COVID-19 Prevention Program/Training
- The ETS includes updated training requirements, such as topics covering vaccinations, respirator availability/use/effectiveness, and when face masks must be used.
- Employers must continue to have an effective written COVID-19 Prevention Program. Cal/OSHA has developed a COVID-19 Model Prevention Program to assist employers with creating their own unique COVID-19 Prevention Program.
Contact Garcia & Gurney For Helpful Workplace Solutions
In light of Cal/OSHA’s revised ETS, employers must reevaluate their current COVID-19 policies and procedures to ensure compliance with the new requirements. Consult with counsel to ensure that policies, trainings, and procedures meet the ETS requirements, and when managing interactions with Cal/OSHA regarding the ETS.