Keenan Briefings

Briefing

New Emergency Temporary Standard in Effect

• An updated emergency temporary standard (ETS) has been approved to protect general industry employees from exposure to COVID-19
• The new ETS is effective as of June 17, 2021

On June 17, 2021, after a process with several starts and stops, the California Occupational Safety and Health Standards Board (OSHSB) voted to approve an updated emergency temporary standard (ETS) to protect general industry employees from exposure to COVID-19. That same day, Governor Newsom signed an executive order making the revised ETS effective upon filing with the Office of Administrative Law, thereby sidestepping the usual 10-day waiting period for emergency regulations and making the new ETS effective as of June 17, 2021.

Reflecting new guidance from the Centers for Disease Control and Protection (CDC) and dropping COVID-19 levels in the state, the new ETS makes the following changes.

• Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
• No face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained on the California Department of Public Health (CDPH) recommendations for outdoor use of face coverings which includes when unvaccinated workers are unable to maintain six feet of social distancing.
• Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status.
  • There are some settings where CDPH (including hospitals, long-term care facilities, and indoor K-12 schools and childcare settings) requires face coverings regardless of vaccination status.
  • In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
• Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request.
  • A respirator is defined as a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.
  • In FAQ guidance, Cal-OSHA clarified that an employer may either stock respirators and offer them to employees or may poll workers to determine which employees wish to be provided a respirator before obtaining them. However, once an employer has established that it has employees who wish to wear respirators, it should have enough on hand of the correct size and type to fulfill reasonably foreseeable requests upon demand. If an employee prefers to select and purchase their own respirator, an employer may permit this alternative, as long as the employer reimburses the employee in a timely manner.
• Employers may not retaliate against employees for wearing face coverings.
• No physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
  • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees).
  • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees).
• No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
• Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations.
• Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems.

The following requirements from the ETS as enacted in November of 2020 remain in place.

• The requirement that an employer have in place an effective written COVID-19 Prevention Program.
• Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
• Providing notification to public health departments of outbreaks.
• Providing notification to employees of exposure and close contacts.
• Requirements to offer testing after potential exposures.
• Requirements for responding to COVID-19 cases and outbreaks.
• Quarantine and exclusion pay requirements.
• Basic prevention requirements for employer-provided housing and transportation.

Cal-OSHA has published FAQ guidance on the changes and has also revised its existing FAQs to reflect the updated ETS. Both of those documents can be found at the links below.

https://www.dir.ca.gov/dosh/coronavirus/Revisions-FAQ.html

https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.pdf

Keenan will be updating the Cal/OSHA COVID-19 Protection Plan Training available through Keenan SafeSchools, Keenan SafeColleges and Keenan SafePersonnel. For additional information please contact your Keenan representative.

Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.