June 1, 2021

Cal/OSHA Standards Board Publishes New, More Cautious ETS Revisions

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.