In a development that every employer in California should be watching closely, Cal/OSHA released the new proposed text (“amendments”) for California’s COVID-19 emergency temporary standard (“ETS”) onFriday, May 7th as part of the agenda for the May 20th Standards Board Meeting. The text of the amendments (available here: https://www.dir.ca.gov/OSHSB/documents/COVID-19-Prevention-Emergency-txtcourtesy-Readoption.pdf) merit a close review with counsel because there is virtually no chance that the Standards Board will change or reject these changes – meaning that we can assume these will pass and go into effect shortly after the May 20th Standards Board vote and the subsequent Office of Administrative Law review. And, though these changes are helpful in parts, they certainly indicate that employers will continue to have significant obligations even after the Governor’s much-discussed June 15th opening date.
I’ll highlight a few of the most important changes – but there is a lot in these amendments to digest, so I would again highly encourage employers across California to look at this and consult counsel on how to adapt their existing policies and practices.
On the positive side,
– The amendments finally recognize vaccination and provide exemptions from a range of requirements for vaccinated employees. Specifically, vaccinated employees will be exempt from the 10-14 day exclusion requirements of the ETS (and accompanying pay), as well as testing, and portions of the social distancing, transportation, and housing requirements.
– In another improvement which CalChamber had pushed for, outbreaks will now only be triggered by 3 or more cases among employees, as opposed to the prior language which allowed non-employees passing through a workplace to trigger an outbreak.
However, there are also new provisions that may add costs for compliance. A few notable examples include:
– In a change to the AB 685-related notice requirements, employers will be required to provide a follow-up verbal notice “as soon as practicable” in the event that the employer learns the employee did not receive the notice or has “limited literacy”.
– Employers will need to provide increased air filtration in minor outbreaks. In the amendments, Cal/OSHA duplicated the obligation to provide MERV filters (which was previously applicable to major outbreaks) to now also apply to outbreaks, meaning that employers with three cases will need to look at air filtration.
– Employers will need to purchase many more N95 respirators, which employers will need to make available for unvaccinated employees under various conditions both before and after July 31st, 2021.
On that note – the amendments include a new date for employers to watch: July 31st, 2021. On July 31st, employers’ obligations towards social distancing, engineering controls, housing, transportation will change. Specifically, the social distancing requirements of the ETS will expire and workplaces will be able to return to relatively normal spacing, but employers will face new obligations to provide N95’s to unvaccinated employees. Notably, that date is not based on vaccination rates or similar data – it will be set in stone once these amendments pass.
In addition to Cal/OSHA’s ETS, employers should also keep in mind that other changes are happening in state guidance simultaneously, and their interactions should be considered. Notably CDPH updated its Guidance for Fully Vaccinated People on May 3rd (available here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-19-Public-Health-Recommendations-for-Fully-Vaccinated-People.aspx). Under CDPH’s new guidance, fully vaccinated persons will not need to quarantine after exposure and have loosened masking obligations, more in line with recent federal changes (available here: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html).
I can already hear some apt readers among you asking – “Wait, if the present ETS remains in effect presently and the amends won’t go into effect until the end of May, then what should we comply with?” DIR has provided some guidance there: on May 5th, DIR’s COVID-19 website (https://www.dir.ca.gov/dosh/coronavirus/ETS.html) clarified that, per Executive Order N-84-20, individuals who are fully vaccinated can follow the recent CDPH updated guidance, and no longer need to be excluded from the workplace under the ETS. Putting aside the law, this makes sense at a basic level because the ETS amendments will (when they go into effect) match this recent CDPH guidance.
Again – a lot to unpack here, and employers should talk to counsel – but the simple take away is: compliance is going to get a lot easier for vaccinated workplaces in the coming months and social distancing requirements will be eased on July 31st, which are certainly a good thing for California.