On Friday, May 7th, Cal/OSHA finalized and published a proposed amended version of its COVID-19 Emergency Temporary Standard (the “ETS”), which the Cal/OSH Standards Board will consider for readoption at the Board’s upcoming May 20, 2021 meeting. The revised sections of the ETS include a series of changes sought by the regulated community, and quite a few that our California Employers COVID-19 Prevention Coalition specifically advocated for, but the rule is still a bear.
It bears emphasizing that the proposed updated ETS is coming more than five months after the Board unanimously adopted the ETS, and during that span, Cal/OSHA has been busy considering potential changes, due in large part to the lack of opportunity by the regulated community to consider and comment in the rush to issue the emergency regulation back in November. Indeed, when the ETS was first adopted, the regulated community struggled to understand and implement the regulation. And while Cal/OSHA issued numerous FAQs in January, February and March, many questions remained unanswered.
In February, the Division convened an Advisory Committee about the ETS consisting of members from business and industry, labor and community groups, public agencies, and the health sciences to provide input on possible changes to the ETS. As you know, Conn Maciel Carey, on behalf of the California Employers COVID-19 Prevention Coalition (the “Coalition”), participated in the three-day (February 11, 12 and 16) Advisory Committee meetings. On March 2, the Coalition submitted written comments to the Chief of the Division addressing a variety of concerns and suggesting, among other recommendations, that the Division:
Clarify the scope of the ETS;
Clarify various requirements under the ETS to be consistent with guidance the Division has provided in its FAQs;
Create more flexibility in the standard to account for the vastly different operations covered by the ETS;
Address the evolving science and public health guidance on COVID-19 and the vaccines; and
Clarify and align notice requirements under the ETS with other California requirements.
The good news is, the agency took our feedback at the Advisory Committee and in our written comments seriously. Much of what we advocated for, practically verbatim, has been included in the proposed amended ETS. The bad news, the rule also includes some changes pushed by labor groups that will make the rule more onerous in some ways. However, on balance, the amended rule is a big improvement from what Cal/OSHA issued last Thanksgiving.
Here are the key changes we have identified in the proposed updated ETS:
Close Contacts. The updated ETS substitutes the term “Close Contact” for the current term “COVID-19 Exposure,” which Cal/OSHA had used to define a close contact instead of just using the more widely understood term close contact. More importantly, the updated ETS will exclude from the definition of Close Contact an individual wearing an N95 or other respirator, but only if the respirator was required by the employer and worn in compliance with the respiratory protection standard; i.e., with fit testing, medical evaluations, written respiratory protection program, etc. The revised rule also memorialized the change that had been made by Executive Order to allow close contacts to return to work after 10 days (as opposed to the original 14 days), and less time for critical healthcare workers (as opposed to all critical infrastructure) during staffing shortages.
Exposed Workplaces/Groups. Having perplexed and confounded countless employers, the term “exposed workplace,” in the context of the ETS’s “Outbreak” provisions, has been replaced by “exposed group,” which is defined as all persons in a work location, area, or common area where a COVID case was present during the high-risk exposure period. While determining who falls within the exposed group may not be appreciably easier now, the updated terminology reflects a more logical approach to evaluating the workplace when cases are reported. The new definition also clarifies when and how a “visit” from a COVID-19 case will trigger certain obligations, obviating the need to guess as to what sort of transitory contact would necessitate a response; now, any visit of less than 15 minutes when all individuals are wearing face coverings will not create an exposed group.
Face Coverings and Respirators. The revised rule ratchets up what is considered to be an acceptable face covering – surgical masks, medical procedure masks, voluntary-use respirators, tightly woven fabric or non-woven material of at least two layers. Conversely, the updated rule clarifies that bandanas, balaclavas, scarves, ski masks and single layers of fabric are not acceptable face coverings. The rule also memorialized Cal/OSHA strict views against the use of non-NIOSH approved respirators. The updated rule now requires, like the Wildfire Smoke rule, employers to providerespirators for voluntary use to employees traveling with other individuals for 15 minutes or more. But perhaps most significantly, face coverings would now become no longer required when all persons in a room are fully vaccinated and nobody has COVID-19 symptoms.
Notification to Exposed Individuals. The exposure notification requirement has been significantly enhanced and expanded, clarifying the acceptable forms of written notice (by personal service, email, or text, if it can be reasonably expected to be received within one business day) and to whom it must be given (all employees at the worksite during the high-risk exposure period, as well as contractors and other employers at the worksite). The rule also incorporates the requirement to provide notice to employee representatives found in Labor Code Section 6409.6(a)(2).
Physical Distancing. Revised physical distancing provisions exempt workers wearing a respirator required by their employers and within a compliant respiratory protection program, as well as those who work in locations where all employees are fully vaccinated (or those eligible for a reasonable accommodation under state or federal law are provided respirators for voluntary use and tested weekly during paid time at no cost). The revised rule also adds a requirement to install barriers at workstations where an employee is assigned to work for an extended period of time, like a cash register, desk, or production line station, and physical distancing is not maintained at all times.
Shared Equipment. In light of the updated CDC guidance about the low risk of surface-to-person transmission, the revised ETS strikes the prohibition against sharing equipment, tools, and materials, and although cleaning is still required, disinfection is now only required if the area has been accessed or the equipment used by a COVID-19 case within the last 24 hours.
Testing. The revised rule clarifies (like Cal/OSHA had done with its FAQs) that to satisfy the testing requirements in the ETS, employers need only offer testing at no cost during paid time (to close contacts and exposed groups in outbreaks), although testing need not be offered to fully vaccinated employees or COVID-19 cases who returned to work and remained symptom-free for 90 days. Most significantly, however, the rule goes even further into turning employers into a public health organization, by requiring the employer to offer testing to any employee experiencing COVID-related symptoms, regardless whether there is any reason to believe the employee’s potential illness may be work-related.
Training. Employees must now be trained on how to participate in the identification and evaluation of COVID-19 hazards, although the rule does not explain what level of training will suffice to satisfy this requirement. The training section also adds training requirements for any employees who voluntarily use respirators, including how to properly wear the respirator, how to perform a seal check each time it is worn, and the fact that facial hair can interfere with the seal. There is also a new training requirement about the importance of getting vaccinated.
Vaccinated Employees. Under the revised rule, fully vaccinated employees need not be excluded from the workplace after a close contact, as long as they do not develop symptoms. Likewise, individuals who returned to work and have remained symptom-free for 90 days are not required to be excluded.
Ventilation. Under the revised rule, employers must evaluate: (a) how to maximize ventilation with outdoor air; (b) what is the highest level of filtration efficiency compatible with the existing HVAC system; and (c) whether portable or mounted HEPA filtration units or other air cleaning systems would reduce the risk of COVID-19 transmission. While (a) and (b) represent relatively minor tweaks to the prior language, the inclusion of HEPA units as an additional option to consider is new. Employers must also evaluate the CDPH’s interim guidance for Ventilation, Filtration and Air Quality in Indoor Environments.
There are quite a few other changes in the rule, so it is worth a read and gap assessment against your current COVID-19 Infection Control programs. We expect this revised rule will again be unanimously adopted by the Standards Board later this month and go into effect in early June.
Contact any of the attorneys in Conn Maciel Carey’s OSHA Practice if you have questions about these updates to Cal/OSHA’s ETS or how it may affect the programs you have been implementing in California to comply with the ETS since last Fall.