News   /   June 8, 2021   /   

Workers May Remove Masks in Certain Workplace Settings Under Revised COVID-19 Emergency Temporary Standards Recommended by California Workplace Safety Board

Update as of June 10, 2021: California’s Occupational Safety and Health Standards Board (“Cal/OSHA Board”) has withdrawn the proposed revisions to the COVID-19 Emergency Temporary Standards (“Emergency Standards”) adopted last week. With California Governor Gavin Newsom promising that the state will fully open up from the pandemic on June 15, 2021, this reversal gives the Cal/OSHA Board a further opportunity to adopt revised regulations that would better align workplace masking requirements with the latest guidance from the Centers for Disease Control and Prevention and the California Department of Public Health. Until the Cal/OSHA Board takes further action or Governor Newsom issues an executive order, the November 2020 Emergency Standards will remain in effect. OMLO will continue to monitor these developments carefully and provide additional updates as they become available. 

On June 3, 2021, the governing board (“Board”) of the California Division of Occupational Safety and Health Standards (“Cal/OSHA”) voted to adopt proposed changes to Cal/OSHA’s COVID-19 Emergency Temporary Standards (“Emergency Standards”). The Board had previously considered proposed revisions to the Emergency Standards on May 20, 2021, but delayed the vote to allow for further updates based on guidance from the federal Centers for Disease Control and Prevention (“CDC”) for fully vaccinated individuals. The Board’s proposed revised Emergency Standards, however, do not completely align with all the CDC’s latest guidance for those fully vaccinated. Accordingly, workplace restrictions in California, at least for now, will remain relatively more restrictive.

Intended to protect workers from hazards related to COVID-19, the Emergency Standards were originally adopted on November 20, 2020, and apply to nearly all workers in California, except those covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. The revised Emergency Standards must still be approved by the Office of Administrative Law (“OAL”) before taking effect, but it is anticipated that the OAL will approve the revised Emergency Standards. The OAL has 10 calendar days to approve the Emergency Standards.

As California employers continue to prepare for the state’s anticipated reopening on June 15, 2021, employers should be aware of the following key revisions to the Emergency Standards:

Face Coverings: Employers must still provide face coverings to employees and ensure face coverings are worn when indoors, when outdoors and less than six feet away from others, and where required by orders from the California Department of Public Health or local orders, except:[1]

  • When an employee is alone in a room, or when all persons in a room are fully vaccinated.[2]
    • But, if anyone in the room is unvaccinated, all employees are still required to wear a face covering.
  • Employees who wear respirators as required by other sections.
  • Employees who are fully vaccinated when they are outdoors and do not have any COVID-19 symptoms.
    • Employees working outdoors who are not fully vaccinated must continue to wear a face covering when they are less than six feet away from another person.

Physical Distancing: Until July 31, 2021, requirements related to physical distancing (i.e., six feet separation between persons) and partitions/barriers remain in effect for employees working indoors and at outdoor mega events.[3] Employers may, however, eliminate physical distancing and partitions/barriers before July 31, 2021, if:

  • Employees are wearing a respirator required by the employer and used in compliance with the Respiratory Protection Standard in Cal. Code. Regs., tit. 8, section 5144; or
  • Employers provide respirators, such as N95s, to all unvaccinated employees for voluntary use.
    • Employers should note that respirators and face coverings are not the same. The revised Emergency Standards defines a “respirator” as a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.[4]

After July 31, 2021, except during outbreaks, physical distancing and partitions/barriers will no longer be required, but employers will be required to provide all employees who are not fully vaccinated with N95s for voluntary use.

COVID-19 Prevention Program: Employers must continue to maintain a written COVID-19 Prevention Program but with the following notable changes:

  • Employers must review the California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.
  • COVID-19 prevention training must now include information on how the vaccine is effective at preventing COVID-19 and protecting against both transmission and serious illness or death.

Exposure Notice Requirements: Employers are now required to provide COVID-19 exposure notices either when they know or should know about a COVID-19 case. The Emergency Standards also expressly mandate that COVID-19 exposure notices must include information required by California Labor Code Section 6409.6 (i.e., AB 685), and require employers to provide verbal notice in a language understandable by the employee if an employer has reason to believe an employee has not received the exposure notice. An employer’s obligation to notify independent contractors and other employers of a possible COVID-19 exposure has not changed.

Exclusion from the Workplace: Employers no longer need to exclude employees from the workplace after a close contact if the employee was fully vaccinated and does not have COVID-19 symptoms, or certain employees who have recovered from COVID-19.

The Emergency Standards have clarified that “close contact” does not include those who are wearing a respirator under a respiratory protection program.

COVID-19 Outbreaks: The Emergency Standards now define COVID-19 outbreaks and major outbreaks, respectively, as occurring when three or more employee COVID-9 cases within a 14-day period or twenty or more employee COVID-19 cases within 30-day period in an “exposed group” visited the workplace during their high-risk period. An “exposed group” includes all employees at a work location, working area, or common area at which an employee COVID-19 case was present during the high-risk exposure period, but does not include employees who are not present at the same time, have no overlap in the workplace, or momentarily pass through an area. An employee is not part of an exposed group if the COVID-19 case visited a work location, working area, or common area for less than fifteen minutes and everyone was wearing face coverings.

Testing: Employers are required to make COVID-19 testing available at no cost during an employee’s workday to all employees who have had a close contact at the workplace, during an outbreak, or who have COVID-19 symptoms. The obligation to provide testing does not apply to employees who are fully vaccinated or to certain employees who have recovered from COVID-19.

Respirators: Beginning July 31, 2021, employers will be required to provide respirators for voluntary use in compliance with subsection 5144(c)(2) to all employees working indoors or at outdoor mega events who are not fully vaccinated.

Special Protections for Housing and Transportation: Special COVID-19 prevention measures that apply to employer-provided housing and transportation no longer apply if all occupants are fully vaccinated.  

To take advantage of the new exceptions to the physical distancing and face covering requirements, the revised Emergency Standards require employers to have documentation showing their employees are fully vaccinated. Collecting and maintaining documentation on employee vaccination status will trigger additional compliance requirements related to the protection of private and confidential employee information and medical records.

The revised Emergency Standards are expected to go into effect no later than June 15, 2021, and will allow employers to begin phasing out certain COVID-19 workplace restrictions, such as face covering and physical distancing requirements, depending on the vaccination status of employees. As employers develop reopening plans, employers should carefully review the revised Emergency Standards and consider how these new standards will be implemented in their workplaces.

OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.

[1] The revised Emergency Standards continue to include the following other exceptions to the face covering requirements: (1) employees who cannot wear face coverings because of a medical or mental health disability , or who are hearing-impaired or communication with someone who is hearing-impaired (effective non-restrictive alternative, such as a face shield with a drape on the bottom, must be worn if condition or disability permits); (2) employees who are eating or drinking, provided employees least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent possible; and (3) while performing specifics tasks which cannot feasibly be performed with a face covering.

[2] As used in the revised Emergency Standards, the term “fully vaccinated” means the employer has documentation showing that the person 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. Vaccines must be FDA approved or have an emergency use authorization from the FDA.

[3] “Outdoor mega event” means an event that includes over 10,000 participants or spectators outdoors and may include conventions, shows, outdoor nightclubs, concerts, sporting events, theme parks, fairs, festivals, large races, and parades.

[4] As part of the requirement to provide respirators, employers will also have to come comply with Title 8, Section 5144(c)(2), which specifies requirements for voluntary respirator use, including providing certain information contained in Appendix D of Section 5144 to users. Additionally, employers will need to develop written procedures for employee use of respirators in the workplace that ensure the use of respirators by employees do not pose a hazard and that respirators are used correctly.

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