Cal/OSHA Proposes Sweeping Changes to Its COVID-19 Prevention Emergency Temporary Standards

On November 30, 2020, California’s Division of Occupational Safety and Health, more commonly known as Cal/OSHA, adopted COVID-19 Prevention Emergency Temporary Standards (ETS) for California. Among other topics, the ETS required that employers develop a written COVID-19 Prevention Program and provided guidance on how employers should address COVID-19 cases and outbreaks in the workplace. Since Cal/OSHA issued its ETS, the California workplace landscape has changed dramatically, with large-scale vaccinations for all ages and employees returning to work across the state.

On May 7, 2021, Cal/OSHA submitted significant proposed revisions to the ETS, which the Cal/OSHA Standards Board will consider at its May 20, 2021, meeting. The proposed revisions include changes across almost the entire ETS regulatory landscape, including the following:

• Updating its definition of “place of employment” to clarify that the ETS does not apply to employees teleworking from a remote location of their choice;
• Clarifying its “close contact” definition to exclude those who are wearing a respirator under a respiratory protection program;
• Shifting from a focus on an “exposed workplace” to defining employees as an “exposed group” of workers at a work location, working area, or common area at which a COVID-19 case was present during the high-risk exposure period. The proposed revisions also exclude from this definition workers who are not present at the same time, have no overlap in the workplace, or momentarily pass through an area, as well as clarify what constitutes 15 minutes together when wearing face coverings;
• Tightening up the definition of “face covering” to specifically exclude “a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.”
• Defining “fully vaccinated” as documentation that evidences that the person received, at least 14 days prior, either the second dose in a 2-dose COVID-19 vaccine series or a single dose COVID-19 vaccine;
• Creating a duty to provide COVID-19 exposure notices when they know or should know about a COVID-19 case, which is a new distinction. The draft proposal mandates written exposure notices that must include information required by California Labor Code Section 6409.6. Additionally, the proposed revisions require employers to provide verbal notice in a language understandable to the employee if they believe the employee has not received the notice. The requirement to notify independent contractors and other employers of a possible COVID-19 exposure remains unchanged.
• Introducing a new training requirement for vaccine information;
• Substantially changing physical distancing requirements to allow work locations with fully vaccinated employees to cease physical distancing; and
• Relieving employers from excluding fully vaccinated employees from the workplace after “close contact” with other individuals and from testing vaccinated employees during an outbreak.

Workplace Exclusions and Exceptions

As under the current ETS, the proposed revisions require that employers exclude COVID-19 cases and employees who have had close contact as the regulations define COVID-19 cases and close contact. However, because Cal/OSHA has revised Section 10 to consider the impact of vaccines, employers do not need to exclude the following employees:

• Individuals who are COVID-19 cases but were fully vaccinated before they became COVID-19 cases AND do not have any symptoms AND if local health department rules allow;
• Employees who had close contact but were fully vaccinated before they had close contact AND do not have any symptoms; and
• COVID-19 cases whom the employer already excluded and returned to work who have remained symptom-free for 90 days after initially being symptomatic or never developed COVID-19 symptoms for 90 days after initially testing positive.

Exclusion Pay and Exceptions

Employers must pay all excluded employees their full wages as if the employer had not excluded them. Employers may use employer-provided sick leave but only to the extent provided by law.  Because California Labor Code Section 246 allows employees (not employers) to choose how they use regular California paid sick leave, the phrase “to the extent provided by law” suggests that employers cannot force employees to exhaust California paid sick leave before the employer provides exclusion pay.

Employers need not pay exclusion pay in the following two situations:

• The employee received disability benefits or was covered by workers’ compensation and received disability benefits; or
• The employer demonstrates that the close contact is not work related.

Trade associations and labor groups are expected to offer public comment at the Cal/OSHA Standards Board meeting on May 20, 2021, and will likely request clarification on a sunset of the COVID-19 regulations as well as other interpretations. California employers that adopted the required COVID Prevention Program may want to consider updating their plans to reflect any adopted changes.