| The rollercoaster has come to an end for the time being. On June 17, 2021, the California OSHA Standards Board (the “Board”) voted to adopt significant updates to the Emergency Temporary Standards (“ETS”) to be more consistent with the California Department of Public Health (“CDPH”) and the Center for Disease Control’s (“CDC”) more relaxed restrictions for vaccinated persons. Following the vote by the Board on June 17th, Governor Gavin Newsom signed an Executive Order waiving the 10-day review period and requiring the revised ETS to take effect immediately. Below is a summary of the top ten updates that employers must be aware of and comply with now: 1. Wearing Masks Fully vaccinated employees are no longer required to wear face coverings indoors. Employees who are not fully vaccinated must still wear face coverings while indoors or in vehicles, subject to certain exceptions, such as if they are the only person in the room. 2. Social Distancing The revised ETS no longer requires physical distancing for any employees within the workplace, consistent with California’s reopening guidelines, unless there is a major outbreak of COVID-19, as defined in the ETS (three or more COVID-19 cases among employees within a 14-day period). 3. Excluding Employees from the Workplace Due to Exposure to COVID-19 Employers are no longer required to exclude employees from the workplace who have been exposed to COVID-19 provided that the employees are (1) fully vaccinated and remain asymptomatic; or (2) have recovered from COVID-19 prior to the exposure and have remained free of COVID-19 symptoms for at least ninety days after the initial onset of COVID-19 symptoms or after the first positive test. All other employees must meet the return to work requirements, outlined in the ETS, prior to returning to work after exposure. 4. Exclusion Pay Employees who do not have COVID-19 but are excluded from the workplace because of a COVID-19 exposure may be eligible for pay during their exclusion (“Exclusion Pay”), unless they are able to work remotely. The revisions clarify that Exclusion Pay is to be paid at the employee’s regular rate of pay no later than the pay period during which the employee was excluded. As such, a failure to provide Exclusion Pay could trigger wage and hour violations under the California Labor Code, which could provoke penalties. 5. Notice Requirements and Follow-Ups The revisions clarify that it is acceptable to give employees notice of a COVID-19 case within the workplace via personal service, email, or text message. The update also requires that employers give employees verbal notice if the employer reasonably knows that an employee did not receive the written notice. Moreover, in the event the employee has limited literacy in the language in which the notice was provided in, the employer is now obligated to provide said verbal notice in a language understandable to the employee. 6. Testing for Employees Although employers have to continue providing COVID-19 testing at no cost for non-vaccinated employees, they are no longer obligated to make testing available to employees that (1) were fully-vaccinated prior to any exposure and do not have any symptoms; or (2) had COVID-19 but have remained free of COVID-19 symptoms for 90 days after the first positive test or after the initial onset of symptoms. 7. COVID-19 Training Employers are required to provide employee training on additional topics, including how to access COVID-19 testing and vaccination, and how to properly wear a respirator, in addition to the previously required topics of COVID-19 symptoms and how COVID-19 can be transmitted. 8. Providing Respirators for Employees The updated ETS requires employers to provide respirators, such as N95s, in two scenarios: (1) where an unvaccinated employee who works indoors with more than one person requests one; or (2) where there is a major outbreak. The respirator must be the right size for the employee(s), and the employee(s) must receive basic training on how to get a good fit. 9. Employer-Provided Housing and Transportation COVID-19 prevention measures specific to employer-provided housing and transportation no longer apply if all occupants are fully vaccinated. 10. Documenting Vaccination Status The revised ETS provides that employers must document the vaccination status of employees. According to the Department of Industrial Relations, acceptable methods of recording vaccination include (1) employees provide proof of vaccination and maintaining a copy; (2) employees provide proof of vaccination and maintaining just a record of employees who have provided proof rather than the actual vaccine record; or (3) employees self-attest to vaccination status and maintaining a record of those who self-attest. If employees decline to provide information related to their vaccination status, then employers must treat them as unvaccinated. Finally, employers must remember to treat any record of vaccination status as confidential health information. It is important to note that a number of important provisions of the previous version of the ETS that went into effect November 30, 2020 remain in effect, and the ETS does not preempt more stringent regulations that may exist within your county. |
| We will provide further updates as employers work through these all-new guidelines in an effort to keep employees safe, while also running their businesses. If you have any questions regarding implementing any of the above requirements, please feel free to reach out to the authors Stacy Fode and Sabrina Lim at NFC West at sfode@nfclegal.com or 619.292.0515. |