Employers now have additional guidance for employee COVID-19 protections in the workplace. On June 17, 2021, the Cal/OSHA Board adopted newly revised Emergency Temporary Standards. While the new standards more closely align with face-covering guidance regarding vaccinated individuals released by the Centers for Disease Control and Prevention and the California Department of Public Health, they do not affect requirements for using face coverings indoors for K-12 schools, child care, and other youth settings. Local educational agency employees working with pupils will continue to be required to wear face coverings.
As reported on the CSBA blog on June 9, the Cal/OSHA Board initially adopted revised Emergency Temporary Standards (ETS) on June 3, 2021, to make revisions to the November 2020 emergency standards based on the availability of vaccines. However, on June 11, the Board withdrew those revised ETS, in part because they did not align with the Centers for Disease Control and Prevention and California Department of Public Health guidance with respect to fully vaccinated individuals. On June 17, the Cal/OSHA Board adopted newly revised Emergency Temporary Standards.
The revised ETS provide, among other things, that fully vaccinated employees in many workplaces are not required to wear face coverings and that employers will not need to require physical distancing by fully vaccinated employees except in the case of a “major” outbreak (20 or more COVID-19 cases in an exposed group of employees). Typically, these ETS would be sent to the Office of Administrative Law for review and approval, which takes up to 10 days, but Gov. Gavin Newsom issued Executive Order N-09-21, which made the new ETS effective immediately, on June 17, 2021.
The new emergency standards do not affect LEA requirements for using face coverings at educational facilities. The CDPH guidance issued June 15, 2021, requires face coverings indoors for K-12 schools, child care, and other youth settings. Therefore, LEA employees working with pupils, whether fully vaccinated or not, are required to wear face coverings unless and until the CDPH issues revised guidance (likely when the CDC issues its revised K-12 guidance). Cal/OSHA has issued a set of Frequently Asked Questions to accompany its ETS that state, “Employees in certain indoor settings must wear a face covering regardless of vaccination status if required by CDPH order. As of June 15, those indoor settings where CDPH requires face coverings include … K-12 educational facilities… ”
With that caveat, the new ETS include requirements that acknowledge the impact of vaccinations on workplace safety. The major revisions are summarized below.
Unvaccinated employees must continue to wear face coverings in the workplace. However — other than the K-12 educational facility caveat above that requires face masks to be worn indoors — fully vaccinated employees do not need to wear face coverings at any time, whether indoors or outdoors and regardless of the vaccination status of other employees. (Where pupils are not present, such as in a district office, these standards apply.) The employer must “document” the vaccination status of fully vaccinated employees. According to the Cal/OSHA FAQs, the employer may document vaccination status in three ways: 1) by obtaining documentary proof of vaccination from the employee and retaining it, 2) by reviewing documentary proof of vaccination and recording that review but not retaining the documents or 3) by allowing employees to attest to vaccination status.
An employee may decline to provide their vaccination status. In that case, the employer must treat the employee as unvaccinated for the purpose of implementation of the ETS but may not take disciplinary action against the employee. An employee is only considered “fully vaccinated” if they have provided documentation or attestation of vaccination status to the employer.
Employers must provide face coverings to employees upon request, even for fully vaccinated employees. Employers may not retaliate against employees who choose to wear a face covering, even if they are not required to do so by the ETS.
No employee is required to wear a face covering outside, regardless of vaccination status, except during major outbreaks. However, employers must communicate to employees that face coverings are recommended outdoors when employees are unable to obtain 6 feet of distancing.
Face coverings must be a surgical mask, a medical procedure mask, a respirator (see below), or made of tightly woven fabric or non-woven materials of at least two layers. Employees may not substitute a scarf, ski mask, balaclava, bandana, turtleneck, collar or single layer of fabric.
Employers must provide unvaccinated employees with a respirator, such as an N-95 mask, for working indoors or in vehicles upon request of an employee. Upon request, employers must also provide a respirator to all employees, regardless of vaccination status, if there is a major outbreak. Employers must provide a respirator as soon as possible when the employee requests.
An employer may not retaliate against an employee for requesting a respirator.
The ETS remove requirements for physical distancing and barriers, regardless of employee vaccination status. However, employers may maintain physical distancing and barriers if they wish. In an outbreak (three or more COVID-19 cases in an exposed group of employees), employers must evaluate whether to add physical distancing and barriers. In a major outbreak, employers must reinstate physical distancing and barriers.
Employers must provide unvaccinated employees with COVID-19 testing at no cost if they are symptomatic, regardless of whether there was a known exposure, if they have been exposed to COVID-19 or if they were involved in an outbreak. Employers must also provide testing at no cost to vaccinated employees after a known exposure, but only if they develop COVID-19 symptoms or if they are involved in a major outbreak.
Employers must evaluate their ventilation systems to maximize ventilation with outdoor air, ensure the highest level of filtration efficiency, and to decide whether the use of High Efficiency Particulate Air (HEPA) filters are necessary to reduce the risk of COVID-19 transmission. In addition, employers must filter recirculated air with Minimum Efficiency Reporting Value (MERV) 13 or higher efficiency filters, only if compatible with the facility’s ventilation system.
The ETS added new training requirements in addition to those already required by Cal/OSHA. In addition to training regarding respirators discussed above, the employer must provide employees training/information regarding:
- How employees can participate in the identification and evaluation of COVID-19 hazards;
- Legally mandated sick and vaccination leave;
- Measures that decrease the spread of COVID-19;
- The protections provided by N-95 masks and other respirators;
- 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;
- The conditions under which face coverings must be worn at the workplace and that face coverings are recommended outdoors when 6 feet of distance cannot be maintained; and
- How employees may request face coverings at no cost and wear them at work regardless of vaccination status.
This article does not address all changes to the ETS approved by the Cal/OSHA board. In addition, many of the requirements set out in the first iteration of the ETS still apply. CSBA recommends that LEAs review Cal/OSHA online resources, including those linked above, to ensure they are meeting all requirements of the revised ETS.