California’s emergency COVID-19 rules for employers are about to become permanent—for at least two years.
Issued late in 2020 by the state Division of Occupational Safety and Health (Cal/OSHA), the Emergency Temporary Standard (ETS) for employers dealing with coronavirus in the workplace is due to expire in January 2022 unless the agency takes the appropriate steps to extend it, a process that it initiated in late September.
The state ETS, which went into effect on Jan. 1, has withstood a court challenge by employer groups and served as a model in part for the ETS that was later adopted by the federal Occupational Safety and Health Administration (OSHA) earlier this year.
The proposed permanent rule does not at this point include a vaccine mandate like the one President Biden ordered be imposed on federal contractors and be developed by OSHA for private employers with more than 100 employees. Cal/OSHA said it will evaluate separately how to respond to a federal OSHA requirement for workplace vaccinations when that standard is published.
“The expanded proposed duration as framed signals that COVID-19 protocols may be here to stay, even after the pandemic is a distant (or even not-so-distant) memory,” according to attorneys for the law firm of Littler Mendelson. As currently written, the California draft standard would apply for two or three years after its effective date, and includes reference to the goal of implementing a permanent general infectious disease standard before the time it will be due to expire.
The draft standard seeks to build in flexibility by expressly incorporating the California Department of Public Health (CDPH) guidelines for COVID. For example, definitions of “close contact” and “infectious period” eventually would change if CDPH chooses to adopt new ones.
In addition, although the Cal/OSHA standard appears to maintain masking requirements for unvaccinated employees, it also would require employers to provide and ensure the use of face coverings whenever required by the CDPH.
A major change involves the proposed elimination of the need for a COVID-19 Prevention Plan (CPP). Instead, an employer would be required to address the workplace hazard of COVID-19 through its Injury and Illness Prevention Plan (IIPP). At a minimum, employers would be expected to assess the hazard of COVID-19, train their employees about that hazard and conduct investigations of COVID-19 cases in the workplace as they arise.
However, under the terms of the draft, employers of any size would be required to document the training they provide their workers, something that the Littler Mendelson attorneys point out represents a departure from existing IIPP requirements.
As was mentioned earlier, the proposal directs employers to provide and ensure use of face coverings as required by CDPH. In the absence of CDPH requirements, the rule defaults to requiring that unvaccinated employees wear face coverings while indoors or in a vehicle with others.
Under the new rules, employers would only be obligated to provide N95 respirators for voluntary use to employees whom a healthcare professional identifies “as being at increased risk of severe illness from COVID-19, regardless of vaccination status.” The current ETS says employers must provide respirators on request to unvaccinated employees.
Obligations for Years
How an employee is determined to have been vaccinated will have a real impact on recordkeeping requirements, the attorneys say. The proposal defines fully vaccinated determination to mean that the employer possesses an electronic or physical copy of the vaccination record stating the vaccine manufacturer and date of last dose, including any booster doses. This language appears to preclude an employer’s reliance on employee self-attestations to verify vaccination status, the attorneys note.
In addition, under the terms of the proposed standard, vaccination records likely will have to be maintained for at least two years after the rule’s sunset date, if not longer. This is largely because the current obligation under state law is for employers to maintain copies of all notices of a COVID-19 case at the worksite for a period of at least three years.
The proposal also expands worksite ventilation requirements. Employers would be expected to review CDPH and Cal/OSHA guidance concerning ventilation and implement changes as necessary and develop specific options for potential implementation. This process will include a mandatory review of mechanical ventilation systems and mechanically-driven HVAC systems that are needed to provide minimum building ventilation.
When it comes to workforce COVID testing, the rule requires employers to provide testing during working time and at no cost to all workers who had been in close contact with an ill worker, regardless of their vaccination status. This would eliminate the previous exception from testing for asymptomatic, fully vaccinated employees.
The rules proposal continues to exclude from the testing requirement employees who have recovered from COVID-19 and have remained asymptomatic for 90 days after the initial onset of symptoms or their first positive test, as applicable. However, it imposes no additional testing requirements for any kind of non-outbreak scenario.
Among the requirements removed under the proposed rule are those regarding handwashing and cleaning/disinfecting procedures, as well as any reference to exclusion pay. As a result, any continuing COVID-19 paid leave obligations would be left to the legislature to impose. The Littler Mendelson attorneys explain that this “sets the stage for a potentially busy legislative session regarding paid leave.”
Outbreak requirements remain pretty much the same, except for two important changes. First, as with close-contact testing requirements, vaccinated employees are not exempt from testing. Second, outbreaks involving 20 or more positive cases in 30 days (that is, what was previously defined as a “major” outbreak) are now reportable to Cal/OSHA.
California employers will be expected to continue following the core obligations set out in the current ETS until Cal/OSHA issues a second re-adoption of the ETS or adopts longer-term standards, the Littler Mendelson attorneys stress.
Although adopting the new rule would represent a simplification of the agency’s requirements compared to the current ETS, they say it signals Cal/OSHA’s intent to continue its COVID-19 enforcement including the issuance of citations. “As such, employers with operations in California should continue to follow the requirements of the currently applicable ETS, while also preparing to ensure they have an IIPP that includes COVID-19 protocols and are documenting their efforts to implement and enforce COVID-19 workplace safety measures.”