UPDATE (6/9/21): New COVID-19 Standards for California Employers

construction workers standing outside a mobile-med tent

CalOSHA has recently announced new standards for California employers, and as we face a transition in the state’s public response to the pandemic, employers are advised to review the new standards and confirm compliance. The new regulations, available here, both extend previous rulings and also impose some new restrictions. While many had anticipated that the updated standards would relax the employer’s obligations, the standards actually create some new regulations. Among the new requirements are the following:

  1. For all employees working indoors or at outdoor “mega events,” which are events with more than 10,000 attendees, employers can satisfy the physical distancing requirements that remain in effect through July 31, 2021, by providing all employees who aren’t fully vaccinated with respirators (e.g., an N95 mask) for voluntary use.
  2. If physical distancing can’t be maintained at all times, and respirators aren’t provided to employees who aren’t fully vaccinated and are working indoors or at outdoor “mega events,” an employer must install cleanable solid partitions between the employee and other people.
  3. Starting July 31, employers must provide a respirator to all employees who aren’t fully vaccinated for voluntary use and train employees on how to properly wear a respirator.

Confirm Status With Employees

The combination of these requirements essentially requires employers to confirm with each employee if they have been fully vaccinated or not. Thankfully, the EEOC has opined that employers are free to inquire with employees if they are fully vaccinated, without engaging in discriminatory conduct (See previous post). However, if employers choose to not make that inquiry, they will have to default to assuming that employers are not vaccinated, as the failure to provide the protections outlined above (cleanable partitions, respirators and related training) would violate the CalOSHA standard in the event that an unvaccinated employee was in the workplace. In short, California employers are now in a position where they have to either confirm vaccination status with employees or provide the protections outlined above, if they want to take a conservative approach to compliance.

Social Distancing

Employers must also maintain social distancing (six feet of separation) in the workplace (through July 31, 2021 (unless further extended. Exceptions to this rule include when employees are fully vaccinated, when respirators are provided to employees, when physical distancing is infeasible (although partitions would then be required), and when close contact occurs as a momentary exposure when people are moving (such as walking down a hallway). Note that under the CalOSHA standards, employees are not “fully vaccinated” until they are 14 days after the completion of a full FDA authorized COVID-19 vaccination process.

Employers to Provide Face Coverings

The standards retain in place an obligation for employers to provide face coverings and to enforce and require their proper use by employees. That obligation does not exist where employees are alone in a room, or where all employees are fully vaccinated and asymptomatic. Note that under a conservative reading of the statute, there are circumstances where employees who are unvaccinated are required to wear a mask, even when working outside.

Testing

Previous standards requiring employers to provide access to COVID-19 testing, to provide notification of potential exposures, and to exclude COVID-19 positive employees from the worksite remain in place. Employers are obligated to update their infectious disease prevention plans to comply with these new standards.

At Work Health Solutions, we can support our clients as they comply with these standards, provding COVID-19 vaccinations and testing, OSHA-mandated respirator fitness surveillance testing, and a host of other measures to ensure a safe and productive workplace. Contact us today for more information.

Dean Frieders

Dean Frieders

Chief Solutions Officer