Late last week, the California Occupational Safety and Health Standards Board (“Standards Board”) reconvened in a public meeting to consider the California Division of Occupational Safety and Health (Cal/OSHA) revised COVID-19 Prevention Emergency Temporary Standard (ETS). The new proposed ETS was developed to replace the existing ETS that has been in place since December 1, 2020.
A prior draft of the ETS was initially to be considered in a May meeting, but it was tabled to allow Cal/OSHA the opportunity for revisions to align with State and the Centers for Disease Control (CDC) guidance. Cal/OSHA made a few revisions to the prior draft of the ETS, the most important of which are detailed below:
- The physical distancing section has been simplified. As was the case with the prior version of the ETS, physical distancing is still only required for all employees until July 31. From the passage date until July 31st, employers have the option to: (1) ensure distancing; or (2) provide unvaccinated employees with respirators for voluntary use. The distancing requirements (if that option is selected) are similar to the previous requirements.
- There is a requirement to maintain physical distancing when a face covering is required but not worn, but only if the face covering is not worn for either of two very specific reasons, (1) where an employee cannot wear a face covering due to a medical condition or (2) where specific tasks cannot feasibly be performed with a face covering. The other exceptions to the face covering requirements do not trigger this physical distancing requirement.
- The requirement to evaluate the need for respiratory protection when distancing cannot be maintained prior to July 31 has been removed.
- Cal/OSHA has added “outdoor mega events” as a defined term and has added new requirements for outdoor mega events that are similar to those for employees working indoors with a few notable exceptions. An outdoor mega event is defined as an outdoor event with 10,000+ participants (g., theme parks, concerts, etc.).
- The exception that previously excluded fully vaccinated individuals from becoming COVID-19 cases has been removed. Importantly, however, the exception from excluding fully vaccinated individuals who have had close contact remains unchanged.
The Standards Board unanimously approved this version of the ETS despite the fact that Cal/OSHA did not adopt the latest CDC guidance removing the requirements for fully vaccinated individuals to socially distance or wear face coverings indoors.
The Standards Board’s approval only came after an initial 4-3 vote to reject the proposed revisions that were largely viewed as still too stringent. During discussion, the Standards Board indicated it was concerned about confusing changes to the rule, and that employers and employees may actually be more likely to stop implementing controls in the face of confusion and frustration. Upon further discussion, however, the Standards Board recognized that the outcome of rejecting the proposed revisions was that the existing rule would remain in place until October 2021. In response, the Standards Board immediately formed a subcommittee to advise Cal/OSHA on improved revisions to this version of the ETS on an expedited schedule and then voted unanimously to approve this version of the ETS.
The rule now will be sent to the Office of Administrative Law for approval, and is estimated to become effective June 15, 2021. Cal/OSHA indicated that FAQs clarifying some of the requirements would be forthcoming. The Board also acknowledged that if they feel the COVID-19 emergency has ended in California, they can revoke the rule at any time. The text of the revised ETS can be accessed here.