COVID-19 and the Workplace: An Update
As we enter the next phase of the COVID-19 pandemic, what are the guidelines for employers as we transition from physical distancing and face masks to normal operations? On June 17, 2021, Cal/OSHA voted to adopt their revised COVID-19 Prevention Emergency Temporary Standards (ETS). On that same day, Governor Newsom signed an executive order immediately implementing those standards. These revised standards are based upon the state’s latest public health guidance as we negotiate the ever-changing world of COVID-19 in the workplace. The new guidelines are essentially divided between vaccinated and unvaccinated employees and are detailed below.
IMPORTANT CHANGES TO THE STANDARDS:
- Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
- No face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained on California Department of Public Health (CDPH) recommendations for outdoor use of face coverings (see the mask section below).
- Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status. There are some settings where CDPH requires face coverings regardless of vaccination status. In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
- Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request.
- Employers may not retaliate against employees for wearing face coverings.
- No physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
- Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
- Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
- No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
- Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations.
- Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency and evaluate the use of additional air cleaning systems.
CONTINUING EMPLOYER REQUIREMENTS:
The ETS initially took effect on November 30, 2020. Despite the recent adoption of the revised ETS, there are requirements from the November 2020 ETS that will remain in place, which include the following:
- An effective written COVID-19 Prevention Program.
- Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
- Providing notification to public health departments of outbreaks.
- Providing notification to employees of exposure and close contacts.
- Requirements to offer testing after potential exposures.
- Requirements for responding to COVID-19 cases and outbreaks.
- Quarantine and exclusion pay requirements.
- Basic prevention requirements for employer-provided housing and transportation.
The revised standard is similar to changes for the general public in California that eliminate physical distancing and barrier requirements regardless of vaccination status. There are several exceptions that may apply:
- Nothing in the revised ETS prevents employers from implementing additional protective measures than are required, including the use of physical distancing and barriers.
- Employers are under an ongoing requirement to assess workplace hazards and implement controls to prevent transmission of disease. There may be circumstances in which employers determine that physical distancing is necessary in their workplace.
- During an outbreak (3 or more employees in an exposed group), employers are required to evaluate whether physical distancing or barriers are necessary to control the transmission of COVID-19.
- Physical distancing and barriers must be used in a major outbreak (20 or more employees in an exposed group) for all employees, regardless of vaccination status.
An employer must provide respirators in two scenarios: (1) to any unvaccinated employee who works with others indoors or in a vehicle and who requests one and (2) where there is a major outbreak, to any employees in the exposed group for voluntary use. The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal,” or fit.
Under CDC and federal OSHA guidance, unvaccinated persons are to wear face coverings and physically distance indoors. Cal/OSHA is requiring voluntary respirators because California is phasing out physical distancing, because a well-fitting respirator reduces the risk of infection better than physical distancing alone, and because respirators are readily available. The ETS provides this as an alternative protection for unvaccinated employees.
Masks are required for everyone regardless of vaccination status in the following industries: public transit, indoors in K-12 schools, childcare and other youth settings. Note that the educational requirements may change pending updates from the Centers for Disease Control (CDC). Masks are required in healthcare settings, including long term care facilities, state and local correctional facilities, detention centers, and homeless shelters.
Masks are required for unvaccinated individuals indoors in public settings and business. However, fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases. If they show symptoms, then they should be tested or quarantined.
Though face coverings are not required outdoors, employers must communicate to workers that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained. Employers must provide face coverings to unvaccinated persons and make them available to vaccinated persons upon request.
The most common exceptions to wearing face coverings for unvaccinated persons are:
- When alone in a room or vehicle
- When eating and drinking
- When an accommodation is required
- When job duties make a face covering infeasible or create a hazard
As noted above, employees must be trained on the CDPH recommendations for outdoor use of face coverings. In settings where masks are required only for unvaccinated individuals – businesses, venue operators or hosts may choose to:
- Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are complying prior to entry.
- Implement vaccine verification to determine whether individuals are required to wear a mask.
- Require all patrons to wear masks.
No person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business.
Employers must make testing available at no cost to employees during paid time to:
- Symptomatic unvaccinated employees, regardless of whether there is a known exposure. This is a new requirement.
- Unvaccinated employees after an exposure.
- Vaccinated employees after an exposure if they develop symptoms.
- Unvaccinated employees in an outbreak.
- All employees in a major outbreak.
Documentation is required for a fully vaccinated employee to work without a face covering indoors. Vaccination status must be documented. The revised standard does not specify a particular method. The employer must have record of the vaccination status for any employee not wearing a face covering indoors and this record must be kept confidential. Acceptable options include:
- Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
- Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
- Employees self-attest to vaccination status and employer maintains a record of who self-attests.
- Nothing in the proposed revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.
If an employee declines to state their vaccination status, under the ETS, an employer is not obligated to require employees to submit proof of being fully vaccinated. Absent such a requirement, an employee has the right to decline to state if they are vaccinated or not. In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.
Cal/OSHA will immediately issue citations for employers who do not implement all provisions of the June 17 Emergency Temporary Standards. As such, employers should implement these new standards as soon as possible. For those unable to implement the standards immediately, the employer must implement or retain alternative controls to ensure the health of employees. If an employer is continuing to comply with the November standards while implementing the revisions, Cal/OSHA will not cite the employer.
With respect to face coverings, the employers can comply with the new standards by requiring face coverings for all employees while they gather documentation to allow fully vaccinated persons to go without face coverings.
If an employer is unable to provide National Institute for Occupational Safety and Health approved respirators on the effective date of the ETS revisions, it is particularly important that the employer take alternative measures to protect unvaccinated employees until respirators are available.
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By: Paula C. Clark, Esq.
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