While California Governor Gavin Newsom has said that many coronavirus restrictions will be lifted on June 15, the California Occupational Safety & Health Standards Board (Board) appears to be bowing to pressure by organized labor to keep face masks and social distancing requirements in place in many settings until early next year.

The proposed changes to the COVID-19 Emergency Temporary Standard (ETS), which revises a version published in early May, come after the Division of Occupational Safety and Health (DOSH) asked the Board to table its vote on that version. DOSH said it wanted to revisit the proposed ETS in light of new CDC guidance saying that fully vaccinated individuals may forego masks indoors. The proposed changes are set to be considered by the Board at its June 3, 2021, meeting.

The new draft standards appear to be stricter than the prior proposal despite the relaxed guidance by the CDC and imminent easing of masking and distancing restrictions contemplated in Governor Newsom’s “re-opening” plan. The revisions leave out many of the changes requested by agriculture and the general business industry, which had argued that the prescriptive standards are no longer necessary in light of rising vaccination rates and the steep decline in COVID-19 cases.

Changes from the earlier proposal include the following:

• Employers must continue to impose physical distancing requirements for fully vaccinated worksites until at least July 31, 2021.
• Employees who are fully vaccinated must wear face coverings while indoors when working with employees who are not fully vaccinated.
• After July 31, 2021, employers will have to provide N-95 masks to all employees who are not fully vaccinated and to those working alongside them indoors.
• Employers must continue to maintain cleanable, solid partitions, even in fully vaccinated indoor worksites.
• Fully vaccinated workers who test positive for COVID-19 must continue to be excluded from work for 10 days after the positive test, even if they are asymptomatic.
• Employers must continue to offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no evidence that the exposure was work related.

Various items from the prior proposed version of the ETS remain in place, including the requirement that employer-provided housing place beds that are spaced to allow at least eight feet between the corner of the head of each bed and positioned to maximize the distance between sleepers’ heads. Moreover, a bunk bed set is limited to one worker. These housing requirements do not apply where every member of the housing cohort is fully vaccinated. The same is true with the employer-provided transportation requirements, which contain an exception where everyone in the vehicle is fully vaccinated.

Cal/OSHA continues to update its interpretive guidance on the ETS via its Frequently Asked Questions page.

A comparison between the original proposal and the current proposal can be found here. Assuming the Board votes on the new proposal on June 3, 2021, the revised ETS would be expected to become effective on or about June 15, 2021.

In the ongoing saga surrounding the Cal/OSHA COVID Emergency Temporary Standards (ETS), the Cal/OSHA Standards Board called a special emergency meeting on June 9^th to discuss potential new ETS rules. The Board stated that its purpose was for the Board to consider new information from the California Department of Public Health on pending guidance regarding face covering that will go into effect on June 15.

After a lengthy public comment period where employer groups expressed growing frustration with the ETS’ lack of alignment with Governor Gavin Newsom’s reopening plan, the Cal/OSHA Standards Board reversed itself again and voted to withdraw the amended ETS Standards it approved one week earlier.  As a result, employers will have to comply with the original ETS still in effect.

The Board has already given notice that ETS revisions will be considered at its next regularly scheduled meeting on June 17th. While Western Growers and many business organizations have asked the Board to revoke the ETS altogether in light of the significant progress the state has made in managing the pandemic, it is clear that the Board intends to move ahead with ETS amendments focused on masking requirements for unvaccinated workers and acceptable methods for verifying employee vaccination.

On June 17, 2021, the Cal/OSHA Standards Board met to consider new revisions to the COVID-19 Prevention Emergency Temporary Standard (ETS) that incorporate the latest public health guidance. After the Board approved the revised guidelines (ETS 2.0), Governor Gavin Newsom issued an Executive Order declaring ETS 2.0 effective once the revision is filed with the Office of Administrative Law. The EO effectively eliminated the statutory 10-day process for the Office of Administrative Law to grant final approval.

Under ETS 2.0, fully vaccinated workers without symptoms can now go completely mask-free. Unvaccinated workers must continue to mask up indoors unless they are alone in a room or eating and drinking. Employers also must provide N95 masks to unvaccinated workers upon request when they are working indoors or in a vehicle. In addition, there are no physical distancing or bed spacing requirements whatsoever in H-2A or other employer-provided housing, and no distancing in employer-provided transportation. In cases where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations altogether.  

According to Cal/OSHA’S newly-issued Frequently Asked Questions, other changes from the original ETS include the following:

• Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
• No face covering requirements outdoors (except during outbreaks), regardless of vaccination status; however, workers should be trained on California Department of Public Health recommendations for outdoor use of face coverings.
• Employers must document the vaccination status of workers who choose not to wear masks. In the event of an outbreak, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
• No physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
  • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees).
  • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees).
• Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems.

Many of the original ETS requirements remain in place, including the following:

• An effective written COVID-19 Prevention Program.
• Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
• Providing notification to public health departments of outbreaks.
• Providing notification to employees of exposure and close contacts.
• Requirements to offer testing after potential exposures.
• Requirements for responding to COVID-19 cases and outbreaks.
• Quarantine and exclusion pay requirements.
• Basic prevention requirements for employer-provided housing and transportation.

Click here to read the press statement that the unified state and regional business community—including Western Growers—issued today in response to new workplace regulations passed by the Cal/OSHA Standards Board and expedited by a subsequent Executive Order issued by Governor Gavin Newsom.