The New Standards Distinguish Between Vaccinated & Unvaccinated People, But Don’t Mirror CDC Guidance
By Alison Alpert, Stacey Sheston & Laura Fowler, Best Best & Krieger LLP
The California Occupational Safety and Health Standards Board recently approved revised COVID-19 Emergency Temporary Standards that impact public agency employers. The lengthy meeting on June 3 included significant public comment and debate among members, and the revised ETS are expected to take effect June 15.
The ETS make important distinctions between unvaccinated and vaccinated workers, as well as workers who previously had COVID-19 and returned to work. These include when and where face coverings are required, what distancing is to be observed and who must be excluded from the workplace in the event of an exposure.
Cal/OSHA ETS vs. CDC Standards
Cal/OSHA’S ETS remain stricter than current Centers for Disease Control and Prevention guidance and will be stricter than the California standards expected to go into effect June 15 for members of the public when they visit businesses or public places. Such differences are likely to cause considerable confusion and morale challenges in many workplaces. The Board recognized these challenges and some other areas for improvement in the ETS and appointed a three-person committee to work with the Division Cal/OSHA staff on an anticipated future revision of the ETS that will be proposed for re-adoption. Some of the most significant requirements of the revised ETS include:
- Indoors, all employees will still be required to wear masks unless they are in an office alone or in a room where all people are fully vaccinated and do not have symptoms.
- Outdoors, masks are not required if employees can physically distance and are vaccinated.
- Employers will still be required to have policies in place to protect employees from people who do not wear face coverings. Members of the public do not fall under these restrictions, but must comply with State Face Covering mandates. After June 15, this likely will mean that members of the public who are vaccinated do not have to wear face coverings indoors at businesses or in public places. (But employers can decide to be more restrictive to protect employees and the method of verification is not defined.)
- Until July 31, except in situations where it is impossible due to the nature of the work or when employees are passing by others, employers are required to have employees continue to physically distance (6 feet) unless all unvaccinated employees are provided N95 masks for voluntary use.
- On July 31, employers will be required to provide N95 masks for voluntary use to all unvaccinated employees working indoors.
- Employees who are unvaccinated and riding in cars with others during working hours will need to be provided with N95 masks for voluntary use and encouraged to use them when riding in a vehicle for 15 minutes or more (this requirement starts 15 days after the ETS take effect).
- Employees in employer vehicles together must wear face coverings and must be three feet apart in all directions or have an unoccupied seat between them, unless all employees in the vehicle are vaccinated.
Do’s & Don’ts
In the meantime, there are “do’s and don’ts” public agency employers should consider as they move forward to implement the revised ETS in the context of the state re-opening June 15. These are broad, general considerations, and employers should consult legal counsel for specific guidance applicable to their city or county.
- DO determine whether employees who have not yet returned to performing duties on-site (i.e. in-person rather than remote work) should be directed to return and, if so, when.
- DO provide employees who are or will be working on-site with compliant face coverings (i.e. no scarves, bandanas or similar single-layer-fabric items, and N95 masks for unvaccinated employees working indoors for their voluntary use. This is one of the more onerous new requirements, and there were many public comments offered at the Cal/OSHA Standards Board meeting about how challenging it continues to be to obtain N95s.)
- DO decide whether to ask employees to provide their vaccination status information and documentation to the employer:
- If you will ask, establish how the information will be collected and how confidentiality will be maintained.
- If you will not ask, you will likely need to treat all employees as unvaccinated. This includes providing N95 masks for voluntary use and excluding employees from the workplace in the event of an exposure.
- DO designate properly trained staff to receive and process requests for accommodation pertaining to implementation of the ETS requirements.
- DO determine where employees working in-person on-site will be performing their work, and how to apply the revised ETS at those locations and in common areas (such as break rooms, conference rooms and meetings spaces, including those where outsiders or members of the public will be present).
- DO update your COVID-19 Prevention Plan to address the revised ETS.
- DO communicate early and often with employees, as well as with outsiders coming into your workplace, about what the compliance requirements are and how to apply them.
- DON’T assume that outsiders (e.g. members the public, vendors, etc.) will know or observe the ETS face covering or distancing requirements of your workplace, particularly in light of the more lenient current CDC guidance and upcoming state guidelines. Be sure to train and deploy staff who can address outsiders’ compliance with whatever vaccination, face-covering and/or distancing requirements your agency has opted to implement for people other than your employees.
- DON’T ask employees who are choosing not to be vaccinated why they are not doing so, and don’t permit employees in the workplace to question or badger their coworkers who have chosen not to vaccinate.
- DON’T share vaccination status data beyond the true “need to know” group of managers and human resources employees who are implementing the new ETS.
- DON’T let disagreements fester among employees about potentially contentious issues like vaccination status or compliance with other prevention measures. Be consistent in direction and enforcement of the direction given.
- DON’T be lax about compliance with the new ETS. Employers who fail to comply face enforcement action, fines and penalties.
BB&K provides California public agencies with counsel on some of the most critical legislation to ensure they stay in compliance while working to serve their communities. If a you have questions or concerns about the new ETS or other employment law impacts on your municipality, please contact one of our attorneys to vet through the implications.
Alison D. Alpert is a partner in the Labor & Employment practice group at Best Best & Krieger LLP. Alison represents private and public employers in a broad range of employment litigation and policies. She can be reached at firstname.lastname@example.org.
Stacey N. Sheston is a partner in the Labor & Employment practice group of Best Best & Krieger LLP. Stacey’s practice includes day-to-day employment advice and represents employers in mediations, arbitrations, administrative hearings and court proceedings. She can be reached at email@example.com.
Laura Fowler is an attorney in the Labor & Employment practice group of Best Best & Krieger LLP. Laura represents employers in a variety of court and administrative proceedings. She can be reached at firstname.lastname@example.org.