Cal/OSHA Adopts Revisions to the ETS

June 21, 2021

This resource is provided by ACSA Partner4Purpose AALRR.

On June 17, 2021, Cal/OSHA voted to approve the proposed revisions to the Emergency Temporary Standards (“ETS”) published June 11, 2021.  After the vote, Governor Newsom issued an executive order enabling the revisions to take effect immediately without waiting the normal 10 days for the Office of Administrative Law to approve the changes. 

Many stakeholders in the employer community lobbied for the ETS to be rescinded.  Cal/OSHA did not rescind the ETS but the revisions do loosen many of the requirements.

Key changes:

  • Fully vaccinated employees will not have to wear face coverings indoors, including when unvaccinated co-workers are among them, except as required by State or local health officials (see discussion below).
  • Most physical distancing requirements have been removed except in cases of major outbreaks.
  • Employers will be required to provide and enforce use of face coverings for unvaccinated employees when indoors, in vehicles, or when otherwise required (e.g. by State or local health orders).
  • Employers must document vaccination status of employees working indoors without face coverings.  Documentation options include: requiring proof of vaccination status or allowing employees to “self-attest” regarding their vaccination status and keeping a record of who self attests.
  • Neither vaccinated employees nor employees who previously tested positive (if certain criteria are met) must be excluded from work when a close contact occurs.
  • Even when the ETS does not require face coverings, the employer must provide them to employees “upon request.”
  • Removes the requirement of cleanable solid partitions in most situations except in cases of major outbreaks.
  • Adds new testing requirements for symptomatic unvaccinated employees.
  • The employer must provide respirators to unvaccinated employees upon request and when there is a “major” outbreak.
  • Adds new training requirements and many other changes. 

It is important to note that the current California Department of Public Health (CDPH) face covering guidance (effective June 15) was specifically incorporated into the ETS, and requires individuals, regardless of vaccination status, to wear face coverings, in certain settings, including public transit; indoors in K-12 schools, childcare, and other youth settings; health care settings, including long term care facilities; state and local correctional facilities and detention centers; and homeless shelters, emergency shelters and cooling centers. (See https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-coverings.aspx).  

Similar rules have also been imposed by local public health officials in some jurisdictions.   

Note regarding face coverings in K-12 schools and other special settings:  AALRR clients who operate K-12 schools, or any of the settings noted above, are encouraged to consult with their usual AALRR legal counsel regarding face covering rules applicable to these settings.  

Note regarding confidentiality of medical information:  As noted above, under the ETS as revised, certain workplace rules for safety and employee conduct are now different (such as face covering requirements), depending on the employee’s vaccination status (or past history of COVID-19).  Employers should keep in mind, however, that federal and state laws protect employee privacy with respect to vaccination information.  In this regard, the EEOC’s May 28, 2021, update to its COVID-19 guidance for employers specifically emphasizes that the Americans with Disabilities Act requires that documentation or other confirmation of vaccination, like all medical information, must be kept confidential and stored separately from the employee’s personnel files.  An employee’s past history of COVID-19 infection also is confidential medical information.  Employers will need to observe these requirements to protect employee privacy when applying the revised ETS to vaccinated and unvaccinated employees.

Join AALRR for a webinar on June 21, 2021 at 1:30 p.m. PDT on “What Educational Institutions Need to Know About the Revised Emergency Temporary Standards.”  Click here for more information and registration. 

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

© 2021 Atkinson, Andelson, Loya, Ruud & Romo
 

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