New COVID-19 Workplace Mask Rules Align with CDC Recommendations

The California Division of Occupational Safety and Health (Cal/OSHA) released new, revised language outlining proposed COVID-19 workplace rules as the state prepares to re-open tomorrow. Importantly, the present emergency regulation remains in effect until the new proposed text is passed by the Standards Board and approved by the Office of Administrative Law (OAL)—meaning the new text will not go into effect until some time after June 15. The Cal/OSHA Standards Board will vote on these revisions to the Emergency Temporary Standard (ETS) at their next meeting on June 17.

On Friday, the California Chamber of Commerce issued the following statement related to the new proposed changes:

“We thank Governor Gavin Newsom for eliminating confusion and working to ensure the state re-opens on June 15th with consistent standards for all based on CDC and CDPH guidelines. We are pleased that Cal/OSHA has aligned their newest proposed regulations to CDC and CDPH by eliminating the requirement for vaccinated employees to wear masks in many workplaces. Further, we applaud Cal/OSHA’s common-sense clarification to end social distancing obligations as soon as the regulation goes into effect—instead of the previously proposed July 31st deadline for businesses. Employers are also grateful for clarification on N95s—that they must be provided upon request—and look forward to additional clarification on verifying vaccination status of employees.

“We urge the Cal/OSHA Standards Board to quickly adopt these recommendations and provide further clarification to employers so California can get back to business.”

Substance of the New Text

Below is a summary of some of the key issues and the proposed changes:

  • Physical Distancing Requirements Deleted: In light of the fact that this new text will go into effect AFTER June 15, the physical distancing requirements have been removed.
  • Face Masks for Vaccinated/Unvaccinated Workers: The proposed new rules include more consistency with the Centers for Disease Control and Prevention (CDC)/ California Department of Public Health (CDPH) updated guidance. Vaccinated workers are not required to wear face masks generally. For unvaccinated workers, masks will be required indoors or when in vehicles, with limited exceptions. However, public-facing businesses should take note that the new text requires employers to “develop policies and procedures to minimize employee exposure to COVID-19 hazards originating from any person not wearing a face covering, including members of the public.”
  • N95’s for Unvaccinated Employees and Stockpiling: The new text adds some key language—”upon request”—which suggests employers may be able to wait to acquire N95’s until they are requested by employees. While this is certainly an improvement, further clarification in the FAQ’s to be prepared by Cal/OSHA is necessary to be certain that this interpretation is correct.
  • Documentation of Vaccination: There is a lot of concern among employers related to how they should ask workers about their vaccination status, as well as document that status. Further clarification is necessary. The new language will require the employer to “document” that the individuals are vaccinated. The implications of this change are debatable, and FAQs will be crucial in determining employer responsibility on this issue.
  • International Vaccines – 3205(b)(9): Where the prior draft did not recognize foreign vaccines, this new version recognizes vaccines “listed for emergency use by the World Health Organization” which will likely be appreciated by larger/international employers.

Procedural Status

The present emergency regulation remains in effect until this new text is passed by the Standards Board and approved by OAL—meaning the new text will not go into effect until after June 15.

The Standards Board has already put this new text on its agenda for a vote at the June 17 monthly meeting.  If passed, it would then go to OAL for approval and, under normal processes, it would go into effect 10 days later (June 28). Bottom line is that the new standard will not be in place by June 15, so there will be a period of social opening where businesses will need to continue under the present ETS.

Employers can also expect FAQ’s to be released on some additional points either shortly after the vote on June 17 (if it is passed), or shortly after it goes into effect.  The CalChamber will provide updates when the FAQ’s are released.