Cal/OSHA Publishes Revised Proposed COVID-19 Emergency Temporary Standard Revisions for June 17 Standards Board Vote

On June 11, 2021, the Occupational Safety & Health Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA) published proposed revisions to the current Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). On June 17, 2021, the Standards Board will meet again to vote on adopting proposed revisions. This is the third updated revision that the Standards Board has considered in the last month. Until the new ETS takes effect, employers must comply with the November 30, 2020, ETS, which remains in place.

The Standards Board again will conduct its meeting via an online platform with an opportunity for public comment. More than 600 people attended the last Standards Board meeting, with California employer representatives and trade groups pleading for consistency with the California Department of Public Health (CDPH) COVID-19 directives and guidance regarding vaccinated employees and face coverings.

The proposed regulation walks back prior proposals but still distinguishes between vaccinated and unvaccinated workers.

Proposed COVID-19 Revised Regulation Highlights

• Physical Distancing Requirements Deleted: 3205(c)

Prior text retained physical distancing protocols until July 31, 2021. This revision reflects a more consistent alignment with Governor Newsom’s California reopening guidelines.

• Face Coverings for Vaccinated/Unvaccinated Workers: 3205(c)(6) [formerly (c)(7)]

Under the presently effective regulation, all workers, regardless of vaccination status, must wear face coverings when indoors, or when outdoors and closer than six feet to each other, subject to certain exceptions. In this latest proposal, vaccinated workers are not required to wear face coverings generally. For unvaccinated workers, face coverings will be required indoors or when in vehicles, with limited exceptions.

• Documentation of Vaccination

The proposed revised regulation includes a slightly revised definition of “fully vaccinated,” which now reads that the

employer has documented 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 (U.S. Food and Drug Administration) approved; have an emergency use authorization from the FDA; or, for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO).

This inclusion of international vaccines may assist international companies as employees return to the workplace.

However, the revised regulations still do not specify whether an employer must obtain a copy of a vaccination card, simply review the card, or can rely on self-certification forms instead. We expect Cal/OSHA to issue answers to frequently asked questions (FAQs) to address documentation requirements.

• New Training Requirements

According to the proposed revised regulations, employers must continue to provide COVID-19 training, including new training subjects such as COVD-19 vaccination and testing access and policies, leave policies, and the employer’s respirator policies.

• N95 Respirators for Unvaccinated Employees and Stockpiling: 3205(c)(6)(B) and Others

This latest revision, adding the terms, “upon request” suggests that employers may be able to wait to acquire N95 respirators until employees request them.  FAQs may clarify the timeframe for California employers to respond to employee requests for N95 masks.

Current Regulation Status

The present emergency regulation, which became effective on November 30, 2020, remains in effect until the Standards Board passes Cal/OSHA’s latest revisions and the Office of Administrative Law approves them.  As a result, the new text will not go into effect until after June 15, 2021, with June 28, 2021, being the likely effective date.

For more information on Cal/OSHA’s COVID-19 ETS, please join us for our upcoming webinar, “Cal/OSHA Tries Again: The Latest on the Proposed COVID-19 Standards,” which will take place on Thursday, June 17, 2021, from 2:00 p.m. to 3:00 p.m. EST. The speakers, Charles Thompson and Karen Tynan, will discuss newly proposed COVID-19 regulations and how they differ from the November 30, 2020, regulations. Register here.

In addition, Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic, including the Cal/OSHA ETS. When Cal/OSHA makes a new proposal to the Standards Board, we will post updates on the firm’s Coronavirus (COVID-19) Resource Center and our California and Workplace Safety and Health blogs. Important information for employers is also available via the firm’s podcasts programs.