CAL/OSHA TO MAINTAIN MASK REQUIREMENTS PAST JUNE 15TH AFTERALL

by Jimmie Johnson

Cal/OSHA continued its burlesque impersonation of a 6-year-old child at an ice cream shop this past week.  Originally, on May 7th, the state bureaucracy unveiled proposed changes to the COVID-19 Prevention Emergency Temporary Standards (“ETS”).  However, shortly thereafter, Cal/OSHA announced that it was tabling its final vote on the revisions; and instead, was scheduling an “emergency” meeting for June 3rd because the proposed changes were not in-line with the guidelines of the California Department of Public Health and federal Centers for Disease Control and Prevention (“CDC”). Then, last week at this “emergency” meeting, Cal/OSHA initially indicated that it would indeed reject the proposed ETS changes because they were not consistent with the CDC guidance. However, by the end of the meeting, Cal/OSHA unanimously voted in favor of adopting those very same revisions.  Vanilla.  Chocolate. Yes, Chocolate…. Well…. actually Vanilla.  Definitely, Vanilla.

In coming to its final decision, Cal/OSHA rationalized that the revisions were necessary as a “stop gap” measure until a newly formed subcommittee could draft yet another set of changes that were in-line with the CDC guidelines.  Of course, there does not appear to be any pressing “emergency” necessitating “stop gap” changes that will only last a couple of weeks until the new subcommittee changes the rules all over again.  In the immortal words of famed, football coach Vince Lombardi, “What the hell is going on out there?!?”

Be that as it may, starting June 15th, the revised Cal/OSHA ETS requirements will take effect, and California employers will need to, temporarily, follow them.  The 26 pages of revised regulations can be found here. A few of the highlights include:

  • Scarfs, ski masks, balaclavas, bandanas, turtlenecks, collars, and a single layer of fabric do not suffice as “face coverings.”
  • A “fully vaccinated” employee is one in which “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.” (Note: On May 28, 2021, the EEOC provided that employers can in fact inquire about or request documentation or other confirmation that an employee has obtained the COVID-19 vaccine. However, if you do request documentation, such documentation or other confirmation is considered medical information that must be kept confidential.)
  • An employer must make COVID-19 testing available at no cost, during paid time, to most employees who have had close contact with a COVID-19 case in the workplace, and provide them with information on available benefits.
  • In the case of a “COVID-19 outbreak” (defined as three or more cases within an exposed group during their high-risk exposure period within a 14-day period), an employer must make COVID-19 testing available at no cost to those exposed group employees during paid time immediately upon knowledge of the outbreak, and then again once per week for those exposed group employees who remain at the workplace, until there are no new COVID-19 cases detected in the exposed group for a 14-day period.
  • In the case of a “Major COVID-19 Outbreak” (defined as 20 or more COVID-19 cases in an exposed group in the workplace during their high-risk exposure period within a 30-day period), an employer must make COVID-19 testing available at no cost to those exposed group employees during paid time twice per week until there are fewer than three COVID-19 cases detected in the exposed group for a 14-day period.
  • An employer must give written notice within one business day of the time the employer knew or should have known of a COVID-19 case to its employees, independent contractors, and other employers at the worksite during the high-risk exposure period.
  • An employer must also provide the separate COVID-19 notice required to any authorized representative of an employee at the worksite during the high-risk exposure period within one business day.
  • An employer must additionally provide verbal notice in an alternative language understandable to the employee if the employer reasonably knows that the employee has limited literacy in the language used in the formal notice.
  • The following are exceptions to the general rule that face coverings are required whenever an employee works indoors, or outdoors with less than six feet of separation from other persons:
    • 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.
    • When an employee is eating, as long as the employee is at least six feet apart from others.
    • When an employee cannot wear a face covering due to a medical condition or disability. (Nevertheless, the employee must still wear whatever alternative covering the disability permits.)
    • When an employee is hearing impaired or communicating with a hearing-impaired person.
    • When an employee is performing a task, which cannot feasibly be performed with a face covering (but only while the employee is actually performing that task.)

The preceding is merely a general summary of some the requirements found in the 26-page set of revised Cal/OSHA regulations.  If you have any questions about these new regulations, or just general employment law/human resources support, please feel free to contact Holden Law Group to discuss.  …And enjoy the upcoming Father’s Day weekend with a nice bowl of ice cream.