On Friday June 11, 2021, the California Department of Occupational Safety and Health (Cal/OSHA) published new proposed text for re-adoption of the COVID-19 Emergency Temporary Standard (ETS).  After previously voting against adopting Cal/OSHA’s initial revised ETS during a highly contentious public meeting earlier this month, during which critics vehemently objected to the rule’s continuation of existing mask requirements, on Thursday, June 17, the California Occupational Safety and Health Standards Board voted in favor of adopting Cal/OSHA’s newly proposed version of the ETS.  Immediately afterward, Governor Gavin Newsom issued an executive order that the ETS will not be subject to the Office of Administrative Law (OAL) ten-day review period, and is instead be effective immediately upon filing with the Secretary of State.   A subcommittee of the Standards Board is scheduled to meet next week to discuss implementation of the new rule and supporting guidance.

Significant changes since the previously proposed version of the new ETS include:

  • The definition of “fully vaccinated” makes clear that the employer must only “document” that the employee is vaccinated (not maintain standalone copies of supporting documentation), and has expanded to accept vaccines listed by the World Health Organization (WHO) for emergency use.
  • The physical distancing and partition requirements have all together been removed, except in the context of an outbreak.
  • Face coverings are only required indoors for employees that are not fully vaccinated.  When face coverings are required, the requirements are similar to what was previously in effect (e.g., employer must provide them, they are clean and undamaged, exceptions apply).
  • There is no requirement for face coverings outdoors and the “outdoor mega event” definition has been removed.
  • Face coverings must be provided to employees upon request regardless of vaccination status.
  • Employers must provide respirators for voluntary use to employees who are not vaccinated upon request.
  • Outbreak requirements no longer mandate physical distancing within the exposed group, but require face coverings indoors and outdoors when within 6 feet of others unless an exception applies.
  • Exceptions have been built into the transportation requirements for vaccinated employees.

California employers should work to update their COVID-19 policies and procedures based on the new requirements.  A copy of the ETS compared to the initial ETS adopted in December 2020 is available here.