Cal/OSHA Standards Board Approves Revised COVID-19 ETS; Governor Issues Order to Make New Standard Effective Immediately Upon Submittal of ETS to OAL

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.