On June 17, 2021, Cal/OSHA approved the proposed revisions to its emergency temporary standards, meaning fully vaccinated employees no longer need to wear masks indoors, with limited exceptions during outbreaks and/or unless otherwise required by county, city, or business rules. The new rules also end social distancing except where an employer determines there is a hazard and for certain employees during major outbreaks. Exceptions may also apply per local or business rules.
Governor Newsom immediately signed an Executive Order to expedite the rules. The rules are effective as soon as they are filed with the Secretary of State. This new regulation is consistent with California's general state guidelines that took effect on June 15, 2021.
- Generally No Mandatory Face Mask Requirement for Employees Who Are Vaccinated, Even if Full Workforce Not Vaccinated.
The new regulations eliminate the requirement that employees wear face masks indoors, even if not all employees are vaccinated. Employers may still require face coverings in the workplace. However, if an Employer wants to eliminate face coverings for its vaccinated staff, it must document the vaccination status of fully vaccinated employees. Verification does not require the employer to retain copies of vaccination cards. Employers should either verify through certified letters from employees (see County forms) or viewing copies of vaccination records.
Fully vaccinated employees do not need to be offered testing or excluded from work after close contact unless they have COVID-19 symptoms.
Face coverings are required during outbreaks when a fully vaccinated employee is part of the exposed group, i.e., where the fully vaccinated employee and all other employees were at a work location, working area, or a common area at work where an employee COVID-19 case occurred during the high-risk exposure period.
- Employers Must Provide Unvaccinated Employees Face Masks And Ensure Worn In Indoor Areas.
Employers must still provide face coverings to employees who are not fully vaccinated and ensure face coverings are worn when indoors, in vehicles with others, or when required by orders from the California Department of Public Health. These employees may request respirators for voluntary use from their employers at no cost and without fear of employers’ retaliation.
Employees who are not fully vaccinated and exhibit COVID-19 symptoms must be offered testing, at no cost during paid time, by their employer.
For employees required to wear face coverings, the following exceptions apply:
- When an employee is alone in a room or vehicle.
- While eating or drinking at the workplace, provided employees are at least 6 feet apart and outside air supply to the area, and if indoors, has been maximized to the extent possible.
- Employees wearing respirators in compliance with Cal/OSHA’s respiratory protection regulations.
- 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.
- Specific tasks which cannot be feasibly performed with a face covering—this exception is limited to the time period in which such tasks are actually performed.
Employees exempt from wearing face coverings due to medical condition, mental health condition or disability must wear an effective non-restrictive alternative, such as a face shield with a drape on the bottom, to the extent their condition or disability permits it.
Otherwise, unvaccinated employees who cannot wear a face covering or non-restrictive alternative due to a condition, disability, or specific tasks which cannot feasibly be performed with a face covering must be at least 6 feet apart from all other persons unless the unmasked employee is either (1) fully vaccinated or (2) tested at least weekly for COVID-19 during paid time and at no cost to the employee.
Employers have the right to terminate unvaccinated employees, but should consult counsel before doing so to ensure compliance with all applicable and changing laws.
- Face Masks Are Not Required For Any Workers When Outdoors.
The regulations have eliminated physical distancing requirements and masking for outdoor work except where an employer determines there is a hazard and for certain employees during major outbreaks.
- When There Are Outbreaks In The Workplace, Face Coverings Are Required.
Employers must follow the requirements for testing and notifying public health departments of workplace outbreaks (3 or more cases in an exposed workgroup in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
During any outbreak, face coverings are required regardless of employee vaccination status: 1) indoors and 2) outdoors when employees are less than six feet from another person.
During major outbreaks, in addition to face coverings, six-feet physical distancing is required where feasible, both indoors and outdoors.
ACTION ITEMS FOR EMPLOYERS
Employers must implement the measures above and communicate to non-employees the face covering requirements on their premises.
Other important changes in the emergency temporary standard include: employer-provided housing and transportation are exempt from the regulations where all employees are fully vaccinated, employers must review the Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments, and employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air cleaning systems.
To learn more about the new Cal/OSHA regulations, please contact Christine Long at Christine.Long@berliner.com or one of the attorneys in Berliner Cohen LLP’s Labor and Employment Law Department at 408.286.5800.