What Cal/Osha’s New COVID-19 Workplace Policies Mean for Employers and Employees
On June 17, 2021, Cal/OSHA held a board meeting in which it adopted new emergency COVID-19 prevention standards (ETS) which brought about changes to the face covering, testing, quarantining, and physical distancing requirements previously in place. Governor Gavin Newsom has signed an executive order allowing for these new rules to take effect immediately, thereby eliminating the 10-day administrative law review that would typically be required for such rules.
Under federal anti-discrimination laws, an employer is not prevented from requiring all employees who physically enter the workplace to have been vaccinated for COVID-19 subject to reasonable accommodation provisions. Under the reasonable accommodation provisions, employees may request accommodations or exemptions with regards to the employer’s company policies related to receiving a COVID-19 vaccine if that employee is immunocompromised.
In cases where an employee does request accommodations against an employer’s policy regarding vaccinations, such accommodations may include, but are not limited to, providing N95 masks in the workplace, allowing the employee to work from home, allowing the employee space away from other employees, and altering work schedules.
New Mask Rules
Under the revised standards, employees in a room will be allowed to remove their face coverings so long as everyone in the room is fully vaccinated. “Fully vaccinated,” means that two weeks have passed since that employee received their second Pfizer or Moderna shot or their first Johnson & Johnson shot and do not exhibit any symptoms of COVID-19. If any employee in the room is not fully vaccinated, all employees in that room must still wear masks. For employees working outdoors, with the exception of “outdoor mega events” of over 10,000 attendees, both fully vaccinated and unvaccinated employees without symptoms will not be required to wear masks.
Additionally, it is also still recommended that employers ensure that their employees are trained on California Department of Public Health’s (CDPH’s) recommendations for outdoor use of face coverings. Furthermore, it is significant to note that there are still certain situations in which CDPH requires face coverings to be worn by employees, regardless of their vaccination statues – namely, during an outbreak, all employees must wear face coverings both indoors and outdoors when six feet physical distancing cannot be maintained. An “outbreak” is typically defined as having three or more positive COVID-19 cases in an exposed group of employees.
Furthermore, employers are prohibited from retaliating against any employee who chooses to wear a mask at work even if they are fully vaccinated and not required to do so.
In order to comply with the new mask rules, employers will need to know which of their employees may remove their face coverings, meaning that employers will need to know who in the workplace has been fully vaccinated. However, employees are not required to provide written proof of being vaccinated; rather, employees must only “self-attest” that they are fully vaccinated. An employee is also not required to disclose their vaccination status to their employer if they decide they do not want to do so. However, any employee who decides not to disclose their vaccination status must be treated as if they are unvaccinated. An employer may provide incentives to employees to voluntarily provide documentation or other confirmation of their vaccination status. Where the employer, or an agent of the employer, administers the vaccine, then any incentive, including both rewards and penalties, for the employee to receive such vaccine must not be so substantial so as to be considered coercive.
Physical Distancing & Partitions
Employers must maintain the previously mandated six-foot physical distancing requirements between employees until July 31 with the exception of employees working indoors or at outdoor mega events. Employers can eliminate physical distancing requirements for and partitions between employees if all employees who are not fully vaccinated are provided face coverings, such as double cloth masks.
After July 31, physical distancing and partitions will no longer be required, except for in the case of a COVID-19 outbreak. In the case of a COVID-19 outbreak, employers must evaluate whether it is necessary to implement physical distancing and partitions. Additionally, during a major outbreak, employers must implement physical distancing and barriers. A “major outbreak” is defined as having twenty or more positive COVID-19 cases in an exposed group of employees.
While physical distancing and partitions will no longer be required after July 31 (except for in the case of an outbreak or major outbreak), employers will still be required to continue to offer unvaccinated employees face coverings beyond that date if they are working indoors or at an outdoor mega event.
Testing at No Cost to Employees (and Exclusion from Workplace)
Employers must continue to make COVID-19 testing available at no cost to employees and during paid time, when employees are within close contact to a COVID-19 case identified at the workplace. If an unvaccinated employee begins displaying symptoms of COVID-19, then the employer must provide no cost testing to that employee during paid time regardless of whether they came into close contact to a COVID-19 case within the workplace or elsewhere.
Employers need not provide no-cost testing to employees who are fully vaccinated unless those employees begin to display symptoms of COVID-19. Additionally, employees who are fully vaccinated do not need to be excluded from the workplace and placed into quarantine unless they begin to display symptoms of COVID-19.
Under the newly revised standards, employers must still provide written notice, by either personal service, email, or text message, to all employees who may have potentially come within close contact to a positive COVID-19 case identified in the workplace. Employers are now further required to provide verbal notice to employees who did not receive any written notice or who have limited literacy in the language of the notice.
Employer’s Written COVID-19 Prevention Program
Employers must also revise their written COVID-19 prevention program to include training about the effectiveness of the COVID-19 vaccine in preventing transmission and serious illness and death. Employers must also review the CDPH’s Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.
Whereas the previous ETS had an expiration date of October 2, 2021, the new regulations have a shortened period of time for which they shall be applicable; until only July 31. California’s reopening plan, which includes new rules to apply outside of workplaces was announced on June 15 and eliminated capacity limitations and physical distancing requirements, following the CDC’s guidance for face coverings. It is of critical importance for California employers to note that they must follow the Cal/OSHA original and emergency standards following the June 15th announcement, even though such new rules for the general public are in conflict with the Cal/OSHA regulations for the workplace.
As with the initial emergency temporary standards, the new rules do not apply for employees working from home, workplaces with only one employee, or employees covered by the Aerosol Transmissible Diseases Regulation.
As California moves forward with its new rules and regulations relating to COVID-19, the experienced employment attorneys at Thakur Law Firm will continue to closely monitor developments that impact our business clients. If you have any questions about complying with COVID-19 related obligations, please do not hesitate to contact the Thakur Law Firm today.
Thakur Law Firm, APC