The ETS, which Cal/OSHA originally issued in November 2020, requires employers to, among other things, offer COVID-19 testing to employees potentially exposed to COVID-19 in the workplace, to track and record COVID-19 cases, to maintain the earnings of employees excluded from work for certain COVID-19-related reasons, and to take certain actions in response to COVID-19 outbreaks.
On June 3, 2021, Cal/OSHA voted to modify the ETS to phase out some physical distancing and face covering requirements in light of COVID-19 vaccinations and the forthcoming retirement of California's Blueprint for a Safer Economy. Most of these changes take effect on June 15, 2021, with the remainder taking effect on July 31, 2021.
The ETS, including the June 3 revisions, applies to all California employees and all workplaces in California except: work locations with one employee; employees working from home; employees telecommuting from a location of their choosing; or employees that fall under Title 8, section 5199 of the California Code of Regulations (healthcare providers, first responders, etc.) (linked here).
Here is a summarized overview of notable changes to the ETS:
Fully vaccinated workers without COVID-19 symptoms are not required to wear face coverings when working outdoors or when working indoors in a room where every other person is fully vaccinated. Fully vaccinated workers will still be required to wear a face covering when they are in a room with a mixture of vaccinated and unvaccinated people.
Unvaccinated workers must continue wearing a face covering indoors and outdoors when they are less than six feet away from another person.
Notably, "fully vaccinated" means the employer has documentation showing a person has received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. This definition will sound familiar to those who read our article about Contra Costa County's COVID-19 vaccine requirements (available here). In practice, this likely means employers will have to obtain and track documentation of their employees' vaccination status to utilize the ETS's relaxed face covering rules. The revised ETS, however, does not actually require employers to obtain their employees' vaccination status.
Employers may eliminate physical distancing requirements for employees working indoors and at "outdoor mega events" if they provide respirators (for example, N95s) to unvaccinated employees for voluntary use. After July 31, 2021, physical distancing and barriers are no longer required, but employers still must provide respirators to unvaccinated employees for voluntary use.
Contact Tracing and Exclusion
Fully vaccinated workers who do not have any COVID-19 symptoms no longer have to be excluded from the workplace after a close contact with a COVID-19 positive individual.
Housing and Transportation Requirements
For employers that provide housing and transportation to their employees, special COVID-19 preventive measures are no longer required if all occupants and travelers are fully vaccinated.
COVID-19 Education and Prevention Program
Employers must continue to maintain a written COVID-19 Prevention Program and now must also: (1) review the California Department of Public Health's interim guidance on indoor air quality (linked here); and (2) educate employees as part of their COVID-19 prevention training about how the COVID-19 vaccine is effective at preventing COVID-19 and protecting against both transmission and serious illness or death.
Outdoor Mega Events
The revised ETS adds outdoor mega events (defined as an event that includes over 10,000 participants or spectators (for example, conventions, shows, concerts, sporting events, theme parks, fairs, race, and parades) as a workplace location.
What to Do
We recommend employers take the following steps to ensure they are ready to comply with the revised ETS requirements:
- Review the Department of Public Health's guidance on indoor air quality;
- Update their COVID-19 prevention plan;
- Update their workplace's COVID-19 prevention training to educate employees on the safety and efficacy of the COVID-19 vaccine;
- Procure and maintain a supply of respirators for employees who are not fully vaccinated;
- Begin planning how to obtain documentation of employees' vaccination status if they intend to utilize the relaxed face covering requirements; and
- Begin planning to update their workplace physical distancing barriers.
These changes are still subject to approval by the Office of Administrative Law, but we anticipate the revised ETS will be effective by June 15, 2021.
Lastly, Cal/OSHA continues to update its interpretive guidance on the ETS via its Frequently Asked Questions page. We encourage employers to stay abreast of the changes and reach out to counsel for the most current information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.