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On June 17, 2021, at the end of yet another chaotic day in administrative rulemaking, California’s new COVID-19 Emergency Temporary Standards (ETS) finally became effective. The ETS brings substantial changes to the COVID-19 regulatory requirements with which employers have struggled since California’s Division of Occupational Safety and Health (Cal/OSHA) initial ETS took effect almost seven months ago, on November 30, 2020.

The Process

Earlier on June 17, 2021, Cal/OSHA’s Occupational Safety & Health Standards Board approved Cal/OSHA’s most recent COVID-19 revisions with 6 aye votes and 1 no vote. Board Member Laura Stock was the lone vote against the regulation update.

The Standards Board again conducted its meeting via an online platform with more than 900 people attending. Both Eric Berg and Corey Friedman from Cal/OSHA advised the Board regarding the proposed regulation, face coverings, N95s, vaccination documentation, and other issues. Public comment was limited to two hours with each speaker limited to two minutes.

Although ordinarily the Office of Administrative Law (OAL) may take up to 10 calendar days to review emergency regulations that agencies submit to them, the governor issued Executive Order N-09-21 and suspended the 10-day requirement. The OAL filed the regulations with the secretary of state, who posted them, making them effective immediately.

COVID-19 Regulation Highlights

Here are some of the highlights of California’s new COVID-19 ETS. The ETS:

  • requires employers to document that employees are fully-vaccinated and can accept verbal self-attestation;
  • eliminates physical distancing requirements;
  • requires unvaccinated workers to wear face masks;
  • requires employers to provide N95 respirators to employees who request them;
  • updates notice requirements for close contacts;
  • restructures exclusion-from-work requirements and return-to-work processes;
  • details new California COVID-19 protection program requirements;
  • imposes new training obligations for COVD-19 vaccination and testing access and policies, leave policies, and respirator policies;
  • includes new outbreak rules; and
  • adjusts employer-provided housing and employer transportation requirements.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic, including the Cal/OSHA ETS. 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 also is available via the firm’s webinar and podcasts programs.

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