California is officially reopened, which means employers are increasingly returning their employees to the physical workplace. To align with this change, the California Occupational Safety and Health Standards Board (Cal-OSHA Board) adopted revised COVID-19 Emergency Temporary Standards (Cal-OSHA ETS) on June 17, marking the first time the Cal-OSHA Board has updated its workplace guidance since November 2020. Governor Newsom signed an executive order on the same day making the Cal-OSHA ETS effective on June 17. What does this mean for California employers? How does this new guidance align with the recent announcements by the federal Occupational Safety and Health Administration (OSHA)? Below we address these questions, and offer 3 key takeaways. 

What changed?

The new Cal-OSHA ETS makes some significant changes from the prior November 2020 version: 

• Quarantining. Removing quarantine and testing requirements for fully vaccinated employees after close contact with a COVID-19 case. Fully vaccinated means at least 14 days have passed since the individual received either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. 
• Face masks. Removing mask requirements for outdoors, regardless of vaccination status, and allowing employers to allow fully vaccinated employees to not wear masks indoors, subject to the employer documenting the employee’s vaccination status. There are some settings in which masks may still be required, including in the case of an outbreak, and there are requirements for providing unvaccinated employees with masks and approved respirators (e.g., N95’s) upon request. Fully vaccinated employees may also request face coverings at no cost to the employee.
• Physical distancing. Removing the physical distancing requirements regardless of employee vaccination status with some exceptions.
• No cost testing during paid time. Employers must make COVID-19 testing available during paid time, at no cost, to unvaccinated employees that are symptomatic and that were exposed.

What remains the same?

Several features of the November 2020 Cal-OSHA ETS remain in place, including the need to have a written COVID-19 Prevention Program, employee training, notification requirements to the public health officials in the case of an outbreak, certain quarantine requirements, notification to employees following a COVID-19 case at the worksite, and communication to non-employees of mask requirements at the worksite.

How does the new Cal-OSHA ETS align with CDC and Federal OSHA guidance?

The new Cal-OSHA ETS aligns with CDC guidance, issued in May, indicating that most fully vaccinated people do not need to continue to use COVID-19 control measures such as masks and physical distancing. But Cal-OSHA’s ETS should not be confused with the ETS issued on June 10 by the federal OSHA. The federal OSHA ETS is a standard for COVID-19 that applies only to healthcare settings, a higher risk setting. California, like other states with OSHA-approved State Plans, will need to either amend its standards for this sector so that they are identical or at least as effective as the new federal standard, or show that an existing State standard covering the area is at least as effective as the federal standard. 

On June 10, OSHA also released guidance for employers not covered by the federal OSHA ETS (see our analysis here). That guidance is advisory only. Employers covered by the Cal-OSHA ETS—which is a mandatory standard—need to follow the California rules. While there are some similarities between the federal OSHA guidance and the Cal-OSHA ETS, some provisions of the Cal-OSHA ETS are more stringent than the federal guidance, such as the Cal-OSHA requirement that employers provide respirators upon request to unvaccinated employees. Employers may find it useful to consult the federal OSHA guidance on topics such as protecting “otherwise at-risk” workers, a group that includes fully vaccinated people who did not have a full immune response to the vaccine.

Key takeaways

• Key takeaway #1: The new Cal-OSHA ETS is only one piece of a larger puzzle. The new Cal-OSHA ETS is just one set of standards California employers must keep in mind when returning workers to the physical workspace. Specifically, the Cal-OSHA ETS does not tell employers whether they should require employees to receive the vaccine, or how to implement workplace policies. The Cal-OSHA ETS instead addresses workplace safety, and what employers need to do in order to align with Cal-OSHA standards.
• Key takeaway #2: Don’t overcomplicate compliance. Ensuring clear and consistent communication to employees, updating your written program, and maintaining robust training for employees are all critical steps to align your policies and practices with the rapidly changing legal landscape. Confusing standards, or being uncertain as to your position regarding vaccinations can create uncertainty amongst the workforce and may present vulnerabilities from a litigation standpoint.
• Key takeaway #3: Be flexible. Employers who take a rigid approach to the new Cal-OSHA ETS, or are not flexible based on the risk profile of their workforce, will find themselves dealing with conflicting standards and will likely face issues with employee morale and compliance. Employers should conduct a risk assessment of their workforce, analyze the appropriate vaccination approach, consult the Cal-OSHA ETS, and proceed with a clear plan for employees and non-employees alike.

If you would like more information about the new Cal-OSHA standards, please contact one of the authors listed in this alert.