Less than 30 Days to Get Ready
After months of waiting, California employers now know what the next version of Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS) will look like. Building off of the present emergency regulation’s text and the February advisory committee meetings, Cal/OSHA released its proposed new text for the ETS on May 7. The proposed text will be in front of the Cal/OSHA Standards Board for approval on May 20 for an up-or-down vote, then will go quickly to the Office of Administrative Law for their sign off, and will likely be in effect shortly thereafter. That leaves California employers less than a month to review the amendments and get their workplace practices ready for the new requirements.
What is different about this new COVID-19 ETS text?
Although much has stayed the same, there are some significant changes that employers should review with legal counsel. Most notably, vaccines and N95 respirators are going to play critical roles in compliance in the next few months. Employers with workforces that are largely vaccinated will see considerable easing in their physical distancing and engineering control requirements. This is particularly true for employers who fall under the transportation and housing sections of the regulation, such as agriculture, where vaccination will exempt employees from most requirements. For employees who are not vaccinated, employers will need to prepare to procure and provide N95 respirators to employees for voluntary use in certain circumstances.
July 31, 2021 is a date that employers should mark on their calendars. The ETS amendments provide that portions of the regulation will expire on that date — including those relating to some physical distancing requirements — but new obligations will also fall into place. For example, after July 31, employers will need to provide N95 respirators to all unvaccinated workers who work indoors on a daily basis — so start stockpiling now if you don’t anticipate your workforce being vaccinated by then.
An area that employers were just starting to get their hands around — AB 685’s notice requirements — is also getting a significant change that will require clarification in future frequently asked questions (FAQs). Under the proposed text, where employers have reason to believe employees have “limited literacy” or did not receive the AB 685-required written notices, employers will have a new obligation to provide verbal notice “as soon as practicable.” What form that will take, the acceptable timeline, and what will be viewed as “limited literacy” are all somewhat unclear at this point.
We also see a host of clarifications and clean-up items that Cal/OSHA took from the advisory committee in February of this year. These include changes to various definitions, as well as clarifying that outbreaks cannot be triggered by nonemployees passing through the workplace.
Procedurally, what does this mean?
When the new ETS text is “re-adopted,” it will change the requirements for employers and also extend the duration of the COVID-19 emergency regulation. Generally, an emergency regulation lasts 180 days, then can be re-adopted twice per statute, with each re-adoption normally set for 90 days. However, per the Governor’s COVID-19 executive order on COVID-19, this re-adoption would last 210 days — meaning the COVID-19 ETS would continue in effect to the end of 2021, and another re-adoption would be possible at that point. To be clear, that doesn’t mean Cal/OSHA could not end the emergency regulation sooner, or that another extension is guaranteed in December — but those are the long-term possibilities.
The next change to watch for after the Standards Board votes on these amendments on May 20 is Cal/OSHA’s Frequently Asked Questions (FAQs) page for the COVID-19 ETS. Over the duration of the ETS, Cal/OSHA has updated the page with some frequency to address concerns, and we can expect Cal/OSHA to issue FAQs clarifying this new text shortly after the new text is adopted.
What about the other COVID-19 changes recently?
The proposed changes to the ETS largely mirror recent developments and guidance from other agencies and federal changes over the last few months.
Most recently, the California Department of Public Health (CDPH) updated its guidance on May 3 to remove quarantine restrictions for fully vaccinated individuals who were exposed to COVID-19 but remain asymptomatic.
Similarly, on May 5, the state Department of Industrial Relations (DIR) posted a parallel update to make clear that employers can cease excluding vaccinated workers from the workplace if they are exposed but remain asymptomatic pursuant to the Governor’s Executive Order even before the new ETS text goes into effect.
Overall — What is the takeaway?
Employers see a mixed bag in this new text. The inclusion of vaccination and the potential end to social distancing are both considerable improvements that will help California’s workplaces begin to return to normal. Furthermore, the July 31 deadline gives some certainty to when workplaces will be able to transition out of the ETS’s provisions. However, the new text also creates some new issues that will need to be addressed. For example — what are employers in California are going to do if their workforces are hesitant to get vaccinated, but that personal choice creates much more costly obligations in the workplace?
To get ahead of these issues, California’s business community would do well to take a close look at the proposed text as soon as possible with legal counsel — because that text will be in effect in 30 days or less.
Staff Contact: Robert Moutrie