Bryan Little, Farm Employers Labor Service

June 17, 2021

On June 17, the Cal/OSHA Standards Board voted to readopt a revised COVID-19 Emergency Temporary Standard (ETS) proposed to the Board by Cal/OSHA.  Barring further action by the Board or by Governor Newsom, this iteration of the ETS will be effective for 210 days from the date of adoption – mid-January 2022.  The California Administrative Procedures Act allows the Board to readopt the ETS one additional time.  Under normal circumstances, an emergency temporary standard would only be effective for 180 days; Governor Newsom issued pandemic-related executive orders extending the timelines for various regulatory actions.

This action comes after two prior attempts to revise the ETS that did not comply with guidance from the U.S. Centers for Disease Control (CDC) and California Department of Public Health (CDPH) to the general effect that it is unnecessary for vaccinated persons to use face coverings.  The first was proposed and withdrawn from Standards Board consideration by Cal/OSHA, the second was initially rejected by the Board, adopted later in the same meeting, and subsequently withdrawn from consideration by the Office of Administrative Law (OAL) by a vote of the Board before it became effective.  Normally, the Board’s June 17 readoption of the ETS would be subject to a 10-day OAL review and become effective by June 28.  The Governor issued an executive order shortly after the Standards Board’s action cutting off that review and making the readopted ETS effective immediately.

The readopted ETS has been changed in some positive ways, but also in some ways that will create problems that Cal/OSHA may (or may not) be able to address in guidance and frequently-asked questions (FAQs) published to its website: 

• Requirements for physical distancing generally are deleted throughout the ETS, including requirements for spacing of beds and a ban on use of bunk beds in employer-provided housing;
• Employees regardless of vaccination status are no longer required to use face coverings when working outdoors;
• Vaccinated employees are no longer required to use face coverings indoors or in vehicles;
• Employers will still be required to provide face coverings to un-vaccinated employees and ensure their proper use except when employees are alone in a room of vehicle, or when eating or drinking so long as six-foot separation is maintained;
• Employers will be required to furnish face coverings to employees on request, regardless of vaccination status;
• Employer-furnish N95 respirators will be required to be in the correct size on request. In this situation, N95 respirators are used under conditions similar to voluntary use rules for dust masks or use of respirators used in compliance with the Wildfire Smoke Regulation, except that employers will be required to train employees on determining an effect seal for the employee using the respirator;
• The requirement to install cleanable solid partitions in fixed work locations where it is not possible to maintain six-foot distancing is deleted;
• Vaccinated employees and employees who have recovered from COVID-19 and remained asymptomatic need not be excluded from the workplace and are not subject to the ETS’ workplace exclusion and wage-replacement requirements;
• Vaccinated employees are also exempted from the original ETS’ requirement to provide testing to non-symptomatic employees who experience a close contact.

The readopted ETS raises some new concerns for employers:

Ascertaining vaccination status: In order to implement the new face masking requirement, it will be necessary for employers to ascertain an employee’s vaccination status and to enforce the requirement for unvaccinated employees to use face masks properly.  FAQs issued June 14 offer three possibilities for compliance with this requirement:

• The employee provides a vaccination card, image of the vaccination card, or some other health document indicating vaccinations for the employer’s inspection, and the employer retains a copy;
• The employee provides proof of vaccination; the employer maintains a record of employees providing vaccination proof, but does not maintain a copy of the vaccination record itself; or,
• Employees self-attest to their vaccination and the employer maintains a record of employees’ self-attestation.

It is important to note that the ETS does not prevent an employer from requiring masking of all employees rather than enforcing face covering for unvaccinated employees.

Recordkeeping: Medical record, or not? While it is not clear whether a photocopy or even record of which employees presented proof of vaccination may be considered a medical record, with attendant requirements for security and preservation of medical records, it seems likely that asking employees to self-attest to their vaccination status, with no examination or even exchange of information about what vaccination an employee may have received or when would be less likely to generate a medical record, relieving employers of an additional regulatory burden.

N95 respirator supply: The readopted ETS includes a requirement for employers to furnish unvaccinated employees with a respirators (likely N95 respirators) on demand for use in lieu of a face covering, and on demand to any employees in a group exposed to COVID-19 regardless of vaccination status.  The June 14 FAQs envision employers polling unvaccinated employees to determine their need to procure respirators, and if the need exists how many respirators to keep on hand.  However, any significant number of respirators used for this purpose could reduce the number or respirators available for compliance with wildfire smoke requirements, respirator requirements for pesticide applicators, or respirators used under voluntary use rules to provide employees with comfort protection against nuisance dust.

Note: Governor Newsom also announced today that the state government will make a one month supply of N95 respirators available for employers to provide to unvaccinated employers; you can find more information here.

Cal/OSHA has indicated it will update its existing template COVID-19 written plan shortly, giving employers guidance as to the contents and structure of a compliant plan.

If you have questions please contact us at info@fels.net or 800-753-9073.