Cal/OSHA Update for Fully Vaccinated Employees

Last month we let you know that Cal/OSHA would soon be providing updates to its Emergency Temporary Standard (ETS) regarding COVID-19 safety in the workplace. After a delay and a few revisions, the proposed changes were approved June 3, and will become effective June 15. We understand that the requirements for face coverings and social distancing in our workplaces are primary concerns, so we address those questions below.

Physical Distancing

Cal/OSHA provides two options for how businesses may approach physical distancing: 1. Employers continue with distancing protocols, with exceptions for 1) those wearing respirators (N95 mask), 2) where distance is not possible, and 3) momentary exposures while employees are in passing. 2. Employers can determine employees’ vaccination status and provide unvaccinated employees with respirators for voluntary use. (This would necessitate the creation of a respirator training/use plan in compliance with the relevant regulations.) In this case, distancing is not required. These requirements will be in place until July 31, 2021. Cal/OSHA does not indicate what will happen after that date.

Face Coverings

Cal/OSHA still requires employers to ensure that face coverings are worn by employees whenever they are within six feet of another person (indoors or outdoors), with the following exceptions:

1. When an employee is alone in a room, or when all persons in a room are fully vaccinated and do not have COVID-19 symptoms.

2. When employees who are fully vaccinated and do have have COVID-19 symptoms are outdoors.

3. While eating or drinking, with 6 feet of distance between employees, and outside air supply.

4. Employees who cannot wear face coverings due to a medical or mental health condition or disability.

5. When employees are wearing respiratory protection respirators required by the employer.

Face covering rules appear to be indefinite. Further, employers cannot prevent any employee from wearing a face covering if he/she wants to do so, unless it would create a safety hazard.

So, What Do We Do Now???

If everyone in your workplace is fully vaccinated, you can throw a big un-masked, un-distanced party to celebrate! You may need to re-introduce yourselves, as we’ve forgotten what each other’s full faces look like over the past year.

Last month we let you know that Cal/OSHA would soon be providing updates to its Emergency Temporary Standard (ETS) regarding COVID-19 safety in the workplace. After a delay and a few revisions, the proposed changes were approved June 3, and will become effective June 15. We understand that the requirements for face coverings and social distancing in our workplaces are primary concerns, so we address those questions below.

Physical Distancing

Cal/OSHA provides two options for how businesses may approach physical distancing: 1. Employers continue with distancing protocols, with exceptions for 1) those wearing respirators (N95 mask), 2) where distance is not possible, and 3) momentary exposures while employees are in passing. 2. Employers can determine employees’ vaccination status and provide unvaccinated employees with respirators for voluntary use. (This would necessitate the creation of a respirator training/use plan in compliance with the relevant regulations.) In this case, distancing is not required. These requirements will be in place until July 31, 2021. Cal/OSHA does not indicate what will happen after that date.

Face Coverings

Cal/OSHA still requires employers to ensure that face coverings are worn by employees whenever they are within six feet of another person (indoors or outdoors), with the following exceptions: 1. When an employee is alone in a room, or when all persons in a room are fully vaccinated and do not have COVID-19 symptoms. 2. When employees who are fully vaccinated and do have have COVID-19 symptoms are outdoors. 3. While eating or drinking, with 6 feet of distance between employees, and outside air supply. 4. Employees who cannot wear face coverings due to a medical or mental health condition or disability. 5. When employees are wearing respiratory protection respirators required by the employer. Face covering rules appear to be indefinite. Further, employers cannot prevent any employee from wearing a face covering if he/she wants to do so, unless it would create a safety hazard.

So, What Do We Do Now???

If everyone is your workplace is fully vaccinated, you can throw a big un-masked, un-distanced party to celebrate! You may need to re-introduce yourselves, as we’ve forgotten what each other’s full faces look like over the past year.

However, if you’re like most companies where some/most employees have received the vaccine and others have not, you’ll need to consider a few tough options. You may require all employees to continue observing the current face covering and distancing protocols, but this is likely to be met with frustration by your vaccinated staff who are more than ready to get back to pre-COVID office life.

In order to allow employees to stop masking and distancing, employers will need to ensure that unvaccinated staff are not coming into close contact with others and/or are wearing a Cal/OSHA approved respirator (generally, this means an N95 mask that is fitted and worn properly). If the employee can work alone in a room, this may be a reasonable option. If the position requires regular contact with others, it will present a greater challenge.

In work environments that are open to the public, such as restaurants, or where physical distancing is not feasible, such as a packing line, all employees should continue to wear face coverings. Non-vaccinated employees must be provided with a respirator for voluntary use.

Employees who are unable to receive a COVID-19 vaccine due to a medical condition or a religious belief must be reasonably accommodated. In these cases, the accommodation still includes face coverings and maintaining physical distance from others. If the employee cannot wear a face covering due to a medical or mental disability, he/she must be tested for COVID-19 weekly during paid time. Employers should require documentation of the need for accommodation, such as a doctor’s note for a medical disability, or a statement confirming the religious tenets prohibiting vaccination.

If an employee is declining vaccination for a reason that is not protected under state or federal law, employers are not obligated to figure out an accommodation or keep the person employed. While this may be a difficult step to take, the disruption to workplace operations may tip the scales toward a termination decision.

What About the State’s “Re-Opening” on June 15th?

California’s Blueprint for a Safer Economy is set to be lifted on that date, which will allow businesses to fully re-open. We also expect relaxed mask mandates in most situations for fully vaccinated individuals. However, employers must still follow Cal/OSHA requirements for employees in the workplace, as described above.

Can I Stop Requiring Employees to Fill Out the Daily Health Screenings?

YES. (Whew!) Employers are still required to screen employees for potential symptoms or exposure to COVID-19, but we can allow staff to self-screen at home prior to arriving at work. Rather than gathering a never-ending stack of paper screening forms, you may instruct employees to inform you if they are experiencing COVID-19 symptoms and stay home from work until you can assess the situation.

Can’t I Just Ignore This Craziness?

We know it has been an ongoing struggle to implement all of these changing requirements, and it’s tempting to take the risk that government agencies will be none the wiser if your business doesn’t follow the letter of the law. The differentiation between vaccinated and unvaccinated employees is likely to create unfortunate tension in the office and pressure on staff who prefer not to receive the vaccine. However, an investigation or audit could be triggered when you least expect it – an angry employee leaving your company, or a person who feels you’re not doing enough to protect employees’ health could easily place a call to Cal/OSHA or other agency. Even if the company prevails in that issue, the time, expense, and worry will take a toll. All businesses are strongly encouraged to abide by our state and local government regulations, and join us in watchful waiting for further gradual changes to be made.