UPDATE on May 20, 2021: Since this article was published, Cal/OSHA has delayed the vote on the new proposed Emergency Temporary Standards. Please read details on the delayed vote on the Reed Smith EHS Law Insights Blog.

As vaccination rates increase in California, the California Department of Occupational Safety and Health (Cal-OSHA) has released a draft of a new proposed COVID-19 emergency regulation. The California Occupational Safety and Health Standards Board will vote on whether to send the proposed regulation to the Office of Administrative Law (OAL) on May 20th. After it is received, the OAL is only required to allow five calendar days for submission of comments and 10 calendar days for review before filing with the Secretary of State. Given this timeline, it is likely that the new regulations will become effective in early June.

The new COVID-19 emergency regulations loosen a number of the prior requirements for fully vaccinated workers. The new COVID-19 emergency regulations, however, also add a number of new compliance requirements for employers. In that regard, the new proposed regulation contains many important changes to how face coverings and N-95 masks must be used, testing and exposure requirements, and the prior exclusion and wage replacement rules. The key changes in these areas are briefly summarized below:

Face coverings/N-95 masks

  • The definition of “face covering” has been revised to exclude single layers of fabric, including, scarfs and bandanas.
  • Face coverings will no longer be required in a room where all persons are fully vaccinated and do not have COVID-19 symptoms.
  • Employers will be required to provide respirators for voluntary use to all employees working indoors who are not fully vaccinated, beginning July 31, 2021.
  • There are new training requirements to address how to properly wear respirators when they are provided for voluntary use, the importance of vaccination, and information on the employer’s COVID-19 policies and how to access testing and vaccination.
  • Employees in required respirators or in “locations” where all employees are fully vaccinated would be immediately exempted from physical distancing requirements.
  • In addition, the physical distancing requirements and the requirement to install partitions in certain areas would expire after July 31, 2021, except in the context of an “outbreak.”

Testing/exposure

  • The defined term of “exposed workplace” is changed to “exposed group,” as the trigger for outbreak and testing requirements.
    • The “exposed group” definition, which is defined as individuals present during a COVID-19 cases’ high risk exposure period rather than the previous geographically-defined “exposed workplace,” includes temporal exceptions for persons who momentarily pass through an area where face coverings are worn, where there is no shift overlap, and where a COVID-19 case visits an area for less than 15 minutes and face coverings are worn.
    • Testing must be made available immediately and on a weekly basis at no cost to employees within the exposed group, except for employees who were not present during the 14 day period, employees who were fully vaccinated prior to the rule becoming effective who have no symptoms, and employees who previously had COVID-19, for 90 days after developing symptoms or the first positive test date, if no symptoms.
    • In addition, there is a new exception to “close contact” that excludes an individual who was wearing a respirator in compliance with the requirements of Cal-OSHA’s respiratory protection standard.
  • The written notice requirements have been revised to define a “worksite” to exclude buildings, floors and other locations where a COVID-19 case did not enter.
  • Regarding the requirement to make COVID-19 testing available at no cost during paid time to all employees who had close contact with a COVID-19 case in the workplace, exceptions have been added for:
    • Employees who were fully vaccinated and do not have symptoms, and
    • Prior COVID-19 cases within 90 days of their symptom onset or positive test who have returned to work and have no new onset of symptoms.
  • A requirement has been added making COVID-19 testing available at no cost during paid time to employees with COVID-19 symptoms who are not fully vaccinated, regardless of workplace exposure, beginning July 31, 2021.

Exclusion and wage replacement

  • Permitting exceptions to the exclusion requirements for fully vaccinated employers and prior COVID-19 cases within 90 days
  • Wage replacement will continue to be required for certain excluded employees. The exceptions where wage replacement is no longer required have changed to only exclude: (1) employees who receive disability payments or who are covered by workers’ compensation and received temporary disability; and (2) where the employer demonstrates that the close contact was not work related.

A copy of the new proposed regulation, which highlights the changes from the current emergency regulation is available at dir.ca.gov.