Cal/OSHA Expected to Adopt Revised COVID-19 Workplace Regulations

attorney Sue m. Bendavid

Sue M. Bendavid | Shareholder

June 7, 2021
Attorney Tal Burnovski Yeyni

Tal Burnovski Yeyni | Associate

June 7, 2021

In November 2020, the California Division of Occupational Safety and Health (Cal/OSHA) issued COVID-19 regulations that required employers to follow certain procedures and safety precautions to protect employees from COVID-19 exposure. You can read about our summary of the regulations here.

With the vaccine rollout and new CDC guidance regarding fully vaccinated individuals, Cal/OSHA adopted revised COVID-19 regulations to address these changes and better align with the State’s June 15, 2021 goal to reopen. 

Like the original regulations, the amended version applies “to all employees and places of employment” with few exceptions. One new exception pertains to employees who telework from a location of their choice – which is not under the employer’s control.

The revised regulations still require employers to prepare a written COVID-19 Prevention Plan (“CPP”), with information about identification and evaluation of COVID-19 hazards, a system for responding to or investigating COVID-19 cases in the workplace, correction of COVID-19 hazards, COVID-19 related benefits, etc.

The revised regulations:

  • Require employers to review the California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.

  • Require employers to (1) provide notice of exposure within one business day of the time employer knew or should have known of a COVID-19 case (via personal service, email, or text message – if it can reasonably be anticipated to be received by employees within one business day of sending – similar to AB 685), and; (2) verbally follow up with employees when the employer “should reasonably know” that an employee has not received the notice or has limited literacy in the language used in the notice.

  • Confirm that COVID-19 testing should be provided during paid time (as opposed to “working hours” in previous version) to employees who had close contact in the workplace, with the following exceptions:

1. Employees who were fully vaccinated before the close contact and do not have COVID-19 symptoms.

2. COVID-19 cases who returned to work after the applicable exclusion period and have remained free of COVID-19 symptoms, for 90 days after the initial onset of COVID-19 symptoms or, for COVID-19 cases who never developed symptoms, for 90 days after the first positive test.

  • Require employers to train employees about the differences between N95 and other respirators and face coverings (“N95s and more protective respirators protect the users from airborne disease while face coverings primarily protect people around the user”), how to properly use respirators, the importance of vaccination, how to access COVID-19 vaccination, and the fact that vaccination is effective at preventing COVID-19.     

  • Clarify that employees who are fully vaccinated and do not have COVID-19 symptoms need not wear face coverings where everyone else in the workplace/room is fully vaccinated and not showing symptoms.  If not everyone in the workplace/room is vaccinated, face coverings continue to be required for everyone regardless of vaccination status.

  • Clarify that employees who do not wear face covering due to medical reasons do not need to remain 6 feet from fully vaccinated persons.

  • Do not require exclusion from work of employees who had close contact if:

1. Employees were fully vaccinated before the close contact and did not develop COVID-19 symptoms; and

2. COVID-19 cases who returned to work after isolation (at least 10 days) and have remained free of COVID-19 symptoms, for 90 days after the initial onset of COVID-19 symptoms or, for COVID-19 cases who never developed COVID-19 symptoms, for 90 days after the first positive test.

  • State that an excluded employee is not eligible for additional exclusion benefits if the employee received disability payments or was covered by workers’ compensation and received temporary disability. Meaning, under the new regs, even if an excluded employee is not able to work due to COVID – the employee is nonetheless entitled to exclusion pay (subject to the exception above).
  • State that special COVID-19 prevention measures that apply to employer-provided housing and transportation no longer apply if all occupants are fully vaccinated.

The new regulations also changed a few definitions. For example:

  • “Exposed workplace” was changed to “exposed group” to clarify that only employees who were part of a group (e.g., crew or shift) that was exposed to a COVID-19 case are considered a part of the “exposed group”

  • “Face covering” specifically exclude a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric from the definition of “face covering”.

  • Added a definition of “Fully vaccinated”: means 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.

There is no definition of “documentation” but we understand this to mean that any form of written verification, other than verbal confirmation, is acceptable.

Sue M. Bendavid & Tal Burnovski Yeyni represent employers.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.

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