Hunton Employment & Labor Perspectives

Beginning June 15, 2021, Governor Newsom moved forward with his plan to lift public health restrictions on businesses, including capacity limitations, physical distancing, and face coverings.  In response, Cal/OSHA also has issued new workplace standards for COVID-19 prevention.

As we noted in our previous blog post on the Emergency Temporary Standards (ETS) linked here, California lifted most of its previous COVID-19 restrictions on businesses on June 15, 2021.  However, California employers still had to grapple with workplace standards set out by Cal/OSHA.   While the guidance from the Governor’s office and from the California Department of Public Health has communicated an intended return to “business as usual,” employers should be aware of additional workplace restrictions that continue in spite of the Governor’s planned reopening.

In November 2020, Cal/OSHA issued regulations called the Emergency Temporary Standards (ETS), to govern employer’s safety obligations with regard to COVID-19.  On June 17, the Cal/OSHA Standards Board voted to approve revisions to the ETS, to better align the ETS with guidance issued by the CDC and the federal OSHA.

California employers should carefully review the new ETS, which can be found here.  Below is a summary of some of the changes to the ETS that California employers should be aware of:

Physical distancing and barriers:  The revised ETS does not require six-feet physical distancing or barriers regardless of employee vaccination status, except during outbreaks.

Face coverings:  Regardless of vaccination status, employees are not required to wear face coverings outdoors, except during outbreaks, although the ETS encourages face coverings even outdoors for unvaccinated workers in certain situations. Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status. For unvaccinated employees, employers must provide face coverings and ensure they are worn indoors and in shared vehicles.  Regardless of vaccination status, employers must provide face coverings to employees upon request.  During outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.

Ventilation:  Employers are directed to evaluate how to maximize ventilation with outdoor air, to increase filtration efficiency to the highest level compatible with the existing ventilation system, and whether use of High Efficiency Particulate Air (HEPA) filtration units or other air cleaning systems would reduce risk of COVID-19 transmission.

Training:  Employers must still provide training to employees, and the revised ETS has identified additional areas that should be covered during this training, including:

• How employees can participate in the identification and evaluation of COVID-19 hazards in the workplace.
• Physical distancing, face coverings, increased ventilation indoors, and respiratory protection all decrease the spread of COVID-19, but that they are most effective when used in combination.
• The employer’s policies for providing respirators, and the right of employees to request a respirator from the employer for voluntary use and at no cost. The training should also cover the fact that N95s protect users from airborne disease, while face coverings primarily protect people around the user.
• Information on the employer’s COVID-19 policies; how to access COVID-19 testing and vaccination; and the fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.
• The conditions under which face coverings must be worn at the workplace and that face coverings are additionally recommended outdoors for people who are not fully vaccinated if six feet of distance between people cannot be maintained.

Exclusion from the Workplace:  Fully vaccinated employees need not be excluded from the workplace due to a close contact, as long as they do not develop symptoms.  The exclusion period for unvaccinated close contacts is 10 days, where no symptoms develop.

Notification Requirements:  Employers must give written notice that people at the worksite may have been exposed to COVID-19. This notice must be sent to all employees, independent contractors, and other employers at the worksite during the high-risk exposure period. The worksite includes the building, store, facility, or other location where a COVID-19 case was present, and does not apply to buildings, floors, or other locations that the COVID-19 case did not enter.

Testing Requirements:  Employers must provide testing for symptomatic, unvaccinated employees at no cost to employees and during employees’ paid time.  In outbreak scenarios, testing should be made available to all employees within the “exposed group.” This includes all employees at a work location, working area, or a common area at work, such as bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. However, the following exceptions apply:

• For the purpose of determining which employees are included in the exposed group, a place where persons momentarily pass through while everyone is wearing face coverings, without congregating, is not a work location, working area, or a common area at work.
• If the COVID-19 case was part of a distinct group of employees who are not present at the workplace at the same time as other employees, for instance a work crew or shift that does not overlap with another work crew or shift, only employees within that distinct group are part of the exposed group.
• If the COVID-19 case visited a work location, working area, or a common area at work for less than 15 minutes during the high-risk exposure period, and the COVID-19 case was wearing a face covering during the entire visit, other people at the work location, working area, or common area are not part of the exposed group.

The revised ETS has been submitted to the Office of Administrate Law (OAL). Under normal circumstances, the revised ETS would not have become effective until June 28 at the earliest. However, Governor Newsom issued an executive order expediting this timeline and directing that the revised ETS is effective as soon as the OAL files with the Secretary of State.