On June 17, the Occupational Safety and Health Standards Board (OSHSB) readopted an amended version of the Emergency Temporary Standards (Cal/OSHA COVID-19 Regulations) (“June 17 Amendments”). These amendments affect many of the requirements that have been in place since OSHSB initially adopted the regulations in November 2020, including those related to employees’ use of face coverings, physical distancing at worksites and the installation of partitions between workstations.
Note: While the Government Code requires that the Office of Administrative Law (OAL) review readopted regulations before they take effect[1], which typically requires at least 10 days[2], Governor Newsom issued Executive Order N-09-21 waiving all of the statutory review period in order to allow the June 17 Amendments to take immediate effect.
The Board’s adoption of the June 17 Amendments concluded a tumultuous month for the Board during which it postponed consideration of amendments, readopted a different version of the regulations (“June 3 Amendments”), and then withdrew those amendments in order to consider additional amendments that would align workplace health and safety requirements with generally applicable guidance provided by public health authorities.
As we previously discussed the June 3 Amendments, the purpose of this bulletin is to identify the most important changes between the June 3 and the June 17 Amendments[3], including the (1) Definition of “fully vaccinated”; (2) Face covering requirements for fully vaccinated employees; (3) Physical distancing requirements at worksites; (4) Installation of solid partitions between workstations where physical distancing is not feasible; and (5) Provision of respirators to employees who are not fully vaccinated.
- Definition of “Fully Vaccinated” – The June 17 Amendments revise the definition of “fully vaccinated” to mean “the employer has documented 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.” The June 3 Amendments defined that term to mean “the employer has documentation 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.” This change is important as it will allow employers to accept employee self-attestations or certification as to the vaccination status rather than require that employees obtain and retain copies of employees’ vaccination records or medical records. As a best practice, employers may request that employees provide documentation of their vaccination status in order to ensure that the employees are actually vaccinated.
- Face Coverings – The June 17 Amendments revise workplace face coverings requirements for employees to align with the June 15 California Department of Public Health (CDPH) guidance for the general public. The June 17 Amendments provide that absent specified exceptions, fully vaccinated employees do not have to wear face coverings at work.[4] This change represents an expansion of the exemptions for fully vaccinated employees from the June 3 Amendments, which only exempted a fully vaccinated employee from the requirement to wear a face covering when the employee was in a room with other employees who are all fully vaccinated and symptomatic or outdoors and also asymptomatic. However, the June 15th CDPH guidance on face coverings states that masks are still required for everyone, regardless of vaccination status, indoors in K-12 schools, childcare, and other youth settings. The CDPH guidance notes this requirement may change as updated K-12 schools guidance is forthcoming: there are pending updates for K-12 operational guidance from the CDC. This means that for the time being, school employees will still need to wear masks indoors despite the June 17 Amendments to the Cal/OSHA COVID-19 Regulations, until such time that updated K-12 school guidance is issued that provides otherwise. The CDPH K-12 guidance for schools is also still operative. That guidance currently states that: “Students in all grade levels K-12 are required to wear face coverings in accordance with the CDPH Guidance for the Use of Face Coverings, while at school, unless exempted.”
Note: The regulatory definition of “fully vaccinated” requires that “the employer has documented 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.”[5] This definition will require that employer obtain vaccination records from employees and undertake additional measures in order to allow fully vaccinated employees to go without face coverings while at work. Liebert Cassidy Whitmore discusses these issues at length in a forthcoming separate bulletin on that subject.
- Physical Distancing – The June 17 Amendments also remove the regulatory requirements related to physical distancing in the workplace.[6] The June 3 Amendments retained the physical distancing requirements through the end of July, providing limited exceptions where employees were provided respirators for their use. As a result of the regulatory change, many employers may now return employees to their worksites and facilities without the need to observe physical distancing requirements. However, the operative CDPH K-12 guidance for schools still requires physical distancing in K-12 schools, including requirements that staff maintain a distance of at least 6 feet from students in classrooms, and that student chairs within classrooms be spaced at least 3 feet apart.
- Solid Partitions between Workstations – Along with the removal of physical distancing requirements, the June 17 Amendments also remove a related requirement concerning the installation of solid partitions between workstations where physical distancing could not be maintained at all times.[7] The June 3 Amendments retained the requirement related to the installation of partitions through the end of July and further required that, in the event of a workplace COVID-19 outbreak after that date, employers reinstall such partitions. As a result of the regulatory changes, employers may remove the solid partitions between workstations if they elect to do so.
- Provision of Respirators to Employees who are Not Fully Vaccinated – The June 17 Amendments clarify that employers need only provide respirators to employees who are not fully vaccinated if the employee requests such device for their use at work and the employee is working indoors or will be in a vehicle with more than one person.[8] The June 3 Amendments provided that “all employees who are not fully vaccinated shall be provided respirators for voluntary use.” The language in the June 3 Amendments was unclear as to employer obligations related to the provision of face coverings to such employees. As a result of the regulatory clarification, employers that allow employees who are not fully vaccinated to report to their worksites and facilities need not provide each employee a respirator, but must be prepared to provide such employees a respiratory device if the employee requests one for their use at work and will be working indoors or will be in a vehicle with more than one person.
It is important to note that schools should review any guidance issued by local health officials, as they may issue additional requirements with regard to face coverings, physical distancing, or other prevention or mitigation measures.
Liebert Cassidy Whitmore attorneys are familiar with specific provisions of the amended Cal/OSHA COVID-19 Regulations and are available to assist employers in navigating these new regulations.
Relatedly, Liebert Cassidy Whitmore is finalizing an updated version of the firm’s model COVID-19 Prevention Program (CPP) as well as a comprehensive summary of the regulatory changes between the initial and amended regulations. Both these documents will be useful in ensuring compliance with the amended Cal/OSHA COVID-19 Regulations and will be available for schools to purchase shortly.
[1] See Gov. Code § 11349.6(a).
[2] See Gov. Code § 11349.6(b).
[3] For a comprehensive accounting of the regulatory changes between the Board’s initial adoption of the regulations and the amended readoption of those regulations, Liebert Cassidy Whitmore is selling an updated model COVID-19 Prevention Program (CPP) and providing an accompanying guide that summarizes the amendments.
[4] See amended regulation 8 C.C.R. § 3205(c)(6).
[5] See amended regulation 8 C.C.R. § 3205(b)(9).
[6] The June 17 Amendments remove the physical distancing requirements, which were previously provided for at 8 C.C.R. 3205(c)(6).
[7] The June 17 Amendments remove the physical distancing requirements, which were previously provided for at 8 C.C.R. 3205(c)(8)(A).
[8] See amended regulation 8 C.C.R. § 3205(c)(7)(D)(2).
This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.
