Cal/OSHA Readopts COVID-19 Emergency Temporary Standard

This evening, the Cal/OSHA Board readopted the Emergency Temporary Standards (ETS) for COVID-19 prevention, which was originally adopted in November of last year. The proposal will now be submitted to the Office of Administrative Law (OAL), where the OAL will have ten calendar days to review and decide whether they will file the regulation with the Secretary of State to make effective for 180 days, with possible extensions pursuant to Governor Newsom’s Executive Orders N-40-20 and N-66-20.

• Though the state is scheduled to fully reopen on June 15, the ETS applies to all employees and places of employment, with the following exceptions:
• Work location with one employee who does not have contact with other persons.
• Employees working from home.
• Employees with occupational exposure defined by section 5199, when covered by that section.
• Employees teleworking from a location of the employee’s choice, which is not under the control of the employer.

Below are a few of the updates employers will want to make note of from the regulation:

The ETS amendments now require that employers provide N95 respirators to those working indoors who have not been vaccinated. Though the employee is not required to wear it, employers must note the fitting requirements associated with N95 respirators to ensure they are in compliance with OSHA regulation. Some of these requirements include an initial fit test to identify the right model, style and size respirator for each worker. Additionally, N95s require a user seal check each time they are put on. Information on the seal test can be found here.

Until July 31, 2021, employers shall comply with the physical distancing requirements described in either section (A) or (B) for all employees working indoors or at outdoor mega events, as follows:

A. All employees shall be separated from other persons by at least six feet, except for employees wearing respirators required by the employer and used in compliance with section 5144; where an employer can demonstrate that six feet of separation is not feasible; and momentary exposure while persons are in movement. Methods of physical distancing include: telework or other remote work arrangements; reducing the number of persons in an area at one time, including visitors; visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path of travel; staggered arrival, departure, work, and break times; and adjusted work processes or procedures, such as reducing production speed, to allow greater distance between employees. When it is not feasible to maintain a distance of at least six feet, individuals shall be as far apart as feasible.

B. All employees who are not fully vaccinated shall be provided respirators for voluntary use in compliance with subsection 5144(c)(2).

Employers must provide clean, undamaged face coverings to be worn by employees over the nose and mouth when indoors, when outdoors less than six feet away from another person, and where required by orders from the California Department of Public Health (CDPH) or local health department. Face shields are not a replacement for face coverings, although they may be worn together for additional protection. Exceptions to this requirement are as follows:

1. When an employee is alone in a room, or when all persons in a room are fully vaccinated and do not have COVID-19 symptoms.
2. While eating and drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent feasible.
3. Employees wearing respirators required by the employer and used in compliance with section 5144.
4. Employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person.
5. Specific tasks which cannot feasibly be performed with a face covering. This exception is limited to the time period in which such tasks are actually being performed.
6. Employees who are fully vaccinated, when they are outdoors and do not have any COVID-19 symptoms.

Any employees not wearing a face covering pursuant to the exceptions above and not wearing a non-restrictive alternative when allowed (such as in cases of a medical condition, mental health condition, or disability), shall be at least six feet apart from all other persons unless the unmasked employee is either fully vaccinated or tested at least weekly for COVID-19 during paid time and at no cost to the employee.

Under the ETS, “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.

The view the updated ETS, click here. View Update