Cal OSHA Board will Consider Changes to the COVID Emergency Temporary Standard

The Cal OSHA Standards Board today will consider proposed revisions to the COVID emergency temporary standard (ETS) that went into effect in November 2020 and is set to expire in October.  The changes are intended to bring the standard into alignment with guidance by the CDC regarding filly vaccinated individuals. However, the proposed ETS is still largely inconsistent with the newest CPDH and CDC guidelines and conflicts with the State’s plan for reopening.  More detail will be provided following the Board’s action this afternoon.

The proposed revised ETS would require employers obtain an employee’s vaccination documentation and to provide N95 respirators for voluntary use by unvaccinated employees. The ETS does not specify how long an employer must retain these records.  Employees who do not have documentation of a vaccine must be provided with an N95 mask for voluntary use. The ETS arguably places employers at risk of violating employees’ privacy rights by inadvertently exposing the employee’s vaccination status when providing unvaccinated employees with the N95 mask.

The ETS immediately eliminates physical distancing and mask requirements for vaccinated employees working outdoors.  Beginning on July 31, 2021, vaccinated employees will not need to wear face coverings indoors when everyone is vaccinated.  If not all employees are vaccinated, face coverings will be required unless not feasible, or an employee cannot use one for medical reasons (current requirements).

Employer-provided housing and transportation will be exempt from the standard when all are vaccinated.

If the ETS is approved by the Board, it will be in effect through 2022 unless redacted by Executive Order, the Courts, or the Board’s discretion.

California Citrus Mutual submitted written comments urging the Board to repeal the current Emergency Temporary Standard and withdraw the revised ETS, or, at minimum, remove the mask and N95 mandates.

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