On June 17, 2021, Cal OSHA adopted revised COVID-19 Prevention Emergency Temporary Standards (“ETS”), which amends certain COVID-19 workplace safety requirements that originally went into effect on November 30, 2020. The changes made to the ETS reflect the availability of vaccinations and more closely mirror the updated guidance from the Centers for Disease Control (CDC) and the California Department of Health (CDPH). The changes took effect June 17, 2021.

It is important to note that the ETS is not intended to limit more protective or stringent state and local rules, so employers should be aware of any applicable health department mandates or guidance.

Some important changes to the ETS include:

  • Face Coverings:
    • Fully vaccinated employees do not need to wear face coverings, except in certain situations during outbreaks and in settings where the CDPH requires face coverings. For an employee to be treated fully vaccinated, the employer must document the employee received either the second dose in a two-dose vaccine series or a single dose vaccine of an FDA-approved vaccine (or WHO-approved vaccine for those who were vaccinated outside the U.S.) at least 14 days prior. Employees who decline to state their vaccination status must be treated as unvaccinated. Though the ETS does not specify a particular method for verification, the FAQs outline the following acceptable options:
      • Employees provide proof of vaccination (vaccine card, image of vaccine card, or documentation showing vaccination) and the employer maintains a copy of the proof or a record of employees who presented proof; or
      • Employees self-attest to their vaccination status and the employer maintains a record of who self-attests.
    • Unvaccinated employees must wear face coverings indoors and in vehicles and employers must provide a face covering in these situations, upon request.
    • No employees are required to wear face coverings outdoors (regardless of vaccination status). However, employers are required to communicate to unvaccinated employees that face coverings are recommended where 6 feet of physical distancing cannot be maintained.
    • Employers cannot retaliate against employees for wearing face coverings.
  • Respirators: Employers must provide respirators (e.g., N95 masks) to:
    • Unvaccinated employees who work with others indoors or in a vehicle, upon request. Employers should provide the respirator as soon as possible after the request (no specific timeline outlined in the standards).
    • All employees in an exposed group after a major outbreak (when 20+ employees have COVID-19 and are present at the workplace in the same 30-day period) for voluntary use.
  • Physical Distancing/Barrier Requirements: The revised ETS eliminates physical distancing and barrier requirements, regardless of vaccination status. There are several exceptions that apply, including during an outbreak (when 3+ employees have COVID-19 and are present at the workplace in the same 15-day period) or major outbreak.
  • Testing: Employers must make COVID-19 testing available at no cost and provide paid time off to obtain the vaccine to:
    • Unvaccinated employees after a COVID-19 exposure, outbreak, and if they have COVID-19 symptoms (regardless of whether there is a known exposure);
    • Vaccinated employees after a COVID-19 exposure if they have COVID-19 symptoms; and
    • All employees in a major outbreak.
  • Requirements after Close Contact with COVID-19 Cases: Fully vaccinated employees do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
  • Specific Standards if an Outbreak or Major Outbreak Occurs: The ETS requires employers to implement more protective requirements if an outbreak or a major outbreak occurs. For instance, employers are required to follow stricter guidelines for COVID-19 testing, face coverings, physical distancing/barriers, and are required to investigate and document the outbreak.

It is important to note that the above summary does not review the ETS in its entirety and employers are encouraged to review the revised ETS and the associated FAQ and fact sheet for more information.

Employer Action

Employers who have employees working in-person at California offices should implement the revised ETS as soon as possible. For employers who are unable to implement the revised ETS immediately, Cal OSHA suggests employers implement or retain alternative controls to ensure the health of employees. Cal OSHA has stated that they will not cite employers who continue to comply with the November iteration of the ETS while implementing the new standards.

Additional Resources

Emerald Law – Emerald is a Client Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Emerald enjoys stand-up comedy, live music and writing non-fiction.