Episode 122: New COVID-19 Workplace Rules Explained

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's executive vice president and general counsel, and with me on the podcast today are two of my Cal Chamber colleagues, employment law expert Matthew Roberts and Robert Moutrie, who was one of Cal Chamber's policy advocates. Welcome, Matt and Rob.

Thanks, Erica. It's good to be here.

Thank you, Erica. Always a pleasure.

So, gentlemen, today we are going to discuss a particularly timely topic, the new Cal OSHA Emergency Temporary Standard, which we refer to as the ets, which has been around and all over the news, particularly over the last couple of months. And it deals with new directives for face coverings, distancing and other details for employers and employees as California's economy starts to reopen. So let's let our listeners get it right. Let's help them navigate through what happened on June 15, what happened on June 17, how can employers comply, and the whole other host of issues. So, Rob, I'm gonna start with you, because I know, Rob, as our Cal Chamber policy advocate handling this issue, you were absolutely on the ground working on this issue, quite honestly, since what, I don't know, the pandemic hit a year and a half ago, but things got really hot and heavy in November when we had the first round of ETS put in place and for employers to quickly comply with, and now these revisions. So what are the most important things about the new ETS for employers to be aware of? But before we even get there, Rob, how did we get to where we are?

Yes, absolutely. It does seem like it's been a long road. So especially recently, things have been complicated. As you said, the ETS went into effect in November, that is last November 2020. It has been in effect since then, and this is the first big substantive change to it in its text. The last couple weeks have been a whirlwind. June 3, Kelosha actually passed a new text at that point, but that text didn't include reopening elements until far after the June 15th dates. You didn't see social distancing and other changes happen in that draft until July 31st. Obviously, this caused a lot of concern and inconsistency with cdph and also inconsistency substantively with some CDC guidance about face masks. So as a result of that, standards board pulled it back a week later, around June 10th that week, and then just last week on June 17th passed the version that is now in effect, and the governor put an EO out immediately after the June 17 version was passed, so that it went into effect immediately. So that's the version that was passed last week and is now in effect today. And I think now we can turn to the substance on it.

So just to roll back the tape a little bit, the CDPH is the California Department of Public Health EO is an executive order that the governor issued. And just to put this all into context and why June 15th is relevant and why June 17th is relevant is for those of us who may have forgotten or are a little bit confused by all These dates, on June 15th is when Governor Newsom officially, quote, unquote, reopened the economy. And that's when the California Department of Public Health issued its guidelines, which basically said, look, if you're fully vaccinated, you may take your masks off. That's a very general, general brief, brief, brief summary of the guidelines. Of course, there was more to it. And then June 17 marked the date that Cal OSHA voted on some of these standards that we're going to be talking about today. And shortly thereafter, Governor Newsom issued an eo, or executive order, making these changes go into effect immediately. And without that executive order, employers would have had to wait up to, I believe it's what, 10 days, Rob, for the administrative process.

Yes. For the Office of Administrative Law to approve that, employers would have to wait until around the 28th for it to go into effect. So we are actually, we're glad the governor stepped in there because that minimizes the period of strangeness where, as you said, the state would have reopened, but businesses would have been under the old set of rules. So stepping in there with the executive order was something that we were glad to see.

All right, so now let's get into the meat here. So before I get to Matt to talk to us about what those frequent questions are that our members are asking us on the helpline, Rob, what were some of those important nuggets or important pieces of the emergency temporary standard that you work so hard to get in place for employers?

Absolutely. So I'll go through kind of the highest of highlights. Obviously, it's a lengthy reg, and there's a lot here, so everybody should look at this with counsel. But the highest of highlights, we saw the end of social distancing requirements immediately upon its passage, which was a huge change indoors and out. We saw the end of masking for vaccinated workers. This was a huge change and again brought us into consistency with cdc, that is the federal standard and CDPH doing California's guidance for social events and for persons. We also saw loosening of disinfecting and cleaning, you had a lot of lingering relics from when in the November standard. We really believed that COVID 19 was a really surface based transmission transmissible disease. And there was a lot of concern there. Of course we know now with modern science that's not the case. So we finally see the regulation catching up there as well. We also see lightening of the outbreak provisions slightly in the sense that they used to be triggered by employees walking through your store. And if you had three employees catch it, that was. And that was a big issue for us where we flagged and said, listen, that's absurd for retail. A family passing through that doesn't get near any of our employees can still trigger an outbreak in our store. We can't have that. So that was another place where CALOSHA heard us, made the change and now outbreaks are only triggered amongst your employees. So those are a couple of examples. I think we'll discuss the self attestation issue down below or excuse me subsequently. So I'll save that one for a moment.

All right. And before I dive in and start peppering Matt with all sorts of questions, I want to let our listeners know that Calosha has a very small thorough FAQ on their website and they have a segment devoted to these new changes that we are talking about. So those FAQs are extremely helpful. They are available on the Cal OSHA website and it's fairly easy to navigate. It's labeled under COVID 19, I believe, and an excellent resource for those of you who are curious to know what the changes are and how you can go about implementing those changes.

If I could make a note there on that faq, as of the date we're recording this podcast, Calischer has two separate FAQ pages, the current regulation and then a revisions for the June 17 version. But depending on when you may be listening to this, they may have unified those into one page. So just be aware that that's you may be looking for the revisions page and it may no longer exist because they may bring it into consistency soon.

Okay, great. That's a great clarification. Okay, so Matt, tell me, what are those burning questions that our members have been submitting to Cal Chambers Labor Law Helpline?

Yeah, absolutely. And I think as many of our listeners can imagine, the number one subject matter on their minds is what are the new face covering rules as far as it pertains to our employees? When CDC launched their change face covering guidance back in May, and then California Departments of Public Health following up with that in terms of fully VACCINATED people don't need to wear face coverings in most settings anymore. This is where a lot of confusion started to get engendered. Because with the workplace, our eyes are always towards Cal osha. Right, because Cal OSHA is the agency that's going to be setting many of our workplace standards as it comes to health and safety. And as Rob has so succinctly put it, they weren't aligning with what CDC and CDPH had said. And so now the question that I'm getting is with Cal OSHA's revisions, are we able to take our face coverings off if we're fully vaccinated? And in a nutshell, the answer is yes, Your fully vaccinated employees do not have to wear face coverings in most settings. There are still a few slight exceptions to that in that CDPH continues to require face coverings on public transit In K through 12, educational facilities, healthcare and long term care settings, correctional facilities and shelters. But otherwise, if you, the employer, documents that your employees are fully vaccinated, those documented fully vaccinated employees no longer have to wear them. Which then begs the question, what do we do with our unvaccinated employees? And the unvaccinated employees at this moment in time still need to wear face coverings indoors, subject to very few exceptions, or when they're in a vehicle with others. Face coverings do not need to be worn outdoors anymore, regardless of vaccination status. But the employers still, as part of their COVID 19 prevention plan, need to tell their employees that to the extent you can't continue to maintain physical distancing, we encourage you to wear face coverings outdoors.

The one tweak that I think we should flag for listeners is unvaccinated vaccinated. Sound like really discreet categories. But you know, the question is, under the regulation, how do you show that and how does someone qualify? And that was a big issue of fighting around the board that we were involved in. And what's come out is that you don't qualify as vaccinated unless your employer has documentation that you are vaccinated now. And maybe that's exactly where you were going, Erica.

Actually, where I was going before we get down this road too much further, is who's fully vaccinated? What is fully vaccinated mean?

So fully vaccinated means for the purposes of the regulation, right, that you've been vaccinated and you've had two weeks after receiving your second dose, or if you're in a one dose vaccine, then two weeks after that and Your employer has to have documentation showing that you're fully vaccinated. And now we'll get into what documentation is and how they ask you. And those are two of the big questions I'm sure you're getting, Matt. But that's how you define fully vaccinated purposes, the regulation.

Okay. And it does have to be a vaccine that's FDA approved or authorized by the FDA for emergency use.

Oh, yes. And one of the recent changes adds international vaccines. So now as of June 17, vaccines recognized by WHO, excuse me, World Health Organization, also qualify under the regulation, which is a good change for international employers and also for families that may be in and out of the country.

All right, so Matt, what are some of the questions you're receiving surrounding the points that Rob has just made as far as that documentation? What do employers need to do to properly document and record, frankly, who's vaccinated?

Yeah, this question really highlighted the importance of those FAQs that Cal OSHA put together on June 15th to address these review. Because the regulation itself just says you need to document and then doesn't go any further as to what that is in the FAQs. Cal OSHA provides employers with three different options that they can use to quote, unquote, document someone's full vaccination status for the purpose of the face covering rules, as well as any other rules where there is a change dependent upon full vaccination status. The first option an employer can use is that they require the employee to show proof of vaccination, whether that's through your vaccination card or through some other medical record, and then the employer keeps a copy of that card or that record. Of course, these records are confidential, so we maintain confidentiality with those as we would with any other medical records. The second option, an employer can again ask for proof of that record, but not take a copy of the record and instead just note that this employee has shown me their vaccination record and they are fully vaccinated, thus creating their own internal records that they're documented. The third option that an employer can use is that they allow employees to self attest as to their full vaccination status and then again create a record of who has self attested to their full vaccination status. And how that really works in practice is Matt, hey, are you fully vaccinated? Why yes, Erica, I am fully vaccinated. And then Erica makes a documented record of that. And that would satisfy the third option for documentation. So for employers who wish to use the face covering exceptions that come around from fully vaccinated employees, we do need to make sure that we have one of those records in place.

Those are not the only options. Those are examples Cal OSHA put forward, but they do not define the entire universe. So if you're looking at some version that looks like a hybrid of that or something close to that is not prohibited. Those are just provided as examples for employers. The other group we haven't mentioned yet is those who you don't know or have refused to state their vaccine status. And we should probably slip in as a caveat that under the regulation, if you don't know their status or they refuse to tell you, you have to treat them as unvaccinated.

Speaking of face coverings, then if someone is fully vaccinated and we have that documentation, then that individual no longer is required under the calosh of rugs to wear a facelift face covering, whether or a mask, for lack of a better word. However, there's nothing in the regulations that are prohibiting employers from continuing to require employees to wear those face masks, correct, Rob?

Yes, absolutely. Employers can go above and beyond. These are the minimums. But if one employer in their community decides they would like to have a more intense standard, they can continue to do so.

Now, speaking of face coverings and the types of face coverings, we've talked a lot and employers have become accustomed to providing providing face coverings to their employees. The general medical mask grade face covering was permissible, but now under these new emergency temporary standards, we also have reference to respirators or N95 masks, as they're often referred to. Matt, have we received questions about these respirators? And actually, before we get to what questions we've received, what did the ETS say as far as employers and respirators? And Rob, maybe you could provide a little bit of background on how we got to where we are.

So, under the ets, these new revisions, employers are required to provide respirators, as they were termed in the ets, to any unvaccinated employees who work indoors or in a vehicle with other people who request a respirator. And in general, the ETS describes respirators as being N95s essentially. And Rob can talk in more detail about the substance of that part of it. But what we're looking at with the N95s is employers are going to need to have a stock of N95s on hand to the extent that any unvaccinated employees are going to want to wear them.

Yes. And a couple of twists about that, that came out in the discussions with the board and staff. Notably, you have to have N95s on hand. But unlike most voluntary use of N95s, you have to have them on hand in multiple sizes because the regulation took the strange step of saying that the N95s had to be the right size. Now you don't have to fit test your employees, you know, which would be. And you don't have to have them medically evaluated. You're going to want to stock some multiple sizes in case you have someone with a relatively small face and big mass has just fallen off. A second thing you should know that the FAQs made clear is that there was a lot of concern about waste. And, you know, if someone isn't getting vaccinated, are they really going to want to wear a less comfortable N95 mask? And the answer of the board and most lobbyists on the topic concluded was no, they're not going to want to. So there's a lot of concern about waste here. And the board took a step here that's helpful. They said, if you ask your unvaccinated employees and say, hey, you know, if you are unvaccinated, are you actually going to want to wear an N95? And they tell you no, you can reduce the number of N95s you are stockpiling because you understand that person would never use it. So the FAQs deal with that. Another reason why they're so important, like you said, Erica. But that's a way for employers to where they can reduce that demand. A second really important piece that we should flag here is something the governor did recently. So the governor was aware of a problem with the N95s. That is, this is potentially a huge spike in demand. And because of his executive order, the regulation went into effect immediately. She had an immediate need for businesses across California theoretically to have N95s on hand, which clearly they didn't have. So he's put forward a program where for the first month of compliance, businesses can withstand relatively little paperwork and trouble, seek N95s from the state stockpile and be given them for free. You have to provide some minimal documentation, and it's kind of ferried out through business organizations or employers. Local chambers are helping with this. But the specific website, if you're interested in that, and getting the free 95s to meet these early compliance for the issues for the first month is saferatwork.covid19.ca.gov N95 distribution saferatwork.Covid 19.ca.gov N95 distribution. And that'll get you on the path to getting some free N95s to meet that first month need for the business.

Thank you. And we'll have that in the show notes as well. And in the interest of time, I'm going to combine a few topics just to highlight and I encourage all employers to take a look at the revised language. We still need to have our COVID 19 prevention plans in place, either as a standalone or incorporated in our iipp. Do take a peek, though. Those programs may need to be amended to take into consideration the changes that were made. But I wanted to just address a couple of remaining topics that I know, Matt and I in discussion. We've received calls from our members and it has to do with physical distancing and barriers and testing obligations. Matt, what are some of our questions regarding those two topics?

Yeah, I think one of the issues with the physical distancing elimination was employers are like, really? We're eliminating that. Well, that's all we've known since March, which is stay six feet away from everybody. To the extent we can and to the extent we can't, we have those plastic barriers, plexiglass, any physical barriers that kind of help prevent infection control in that place. And the answer is yes, immediately physical distancing requirements are eliminated, but that doesn't mean that the employer completely forgets about them. And I know Rob can expound on this, but essentially, employers are still going to need to consider whether physical distancing is going to be important or even necessary after assessing how their workplace is operating and whether or not there's a transmission or outbreak hazard that may be in the workplace.

Absolutely, Matt, that's a good point. That employers should be aware that the outbreak requirements from the COVID 19 emergency regulation still continue to be in effect. And so a lot of the loosening, like social distancing, like the lack of dividers and engineering controls in the newer standard, as the standard has changed on June 17 changes, a lot of those changes go back into effect if you have an outbreak at your workplace. So take special care when you look at the outbreak changes in the regulation so that you're read. Because, for example, if you think, hey, if I have an outbreak which I won't see coming, I have to put things back in place, it may make more sense to just leave some dividers up as opposed to the cost of putting them in and out. So that's a, that's a very practical issue that you should take care as you review.

And finally, Matt, what about testing?

Yeah, many of the testing requirements from the original ETS still stay in place, but there's some interesting wrinkles to them. Now, one of the new issues with regard to testing is that for any of our unvaccinated employees, if they have any symptoms of COVID 19, regardless of whether or not there's a known workplace exposure, we now have this obligation to provide testing at no cost to the employees during paid work time. Some people who are removed from this, however, is that if we have fully vaccinated employees and they're not showing any symptoms, then there is no obligation under the revised ETS to provide this no cost testing to our employees. But for many of the rules, such as, you know, the immediate testing during the outbreak time, where we have three cases or more in a 14 day period, and then weekly testing thereafter until the outbreak period is over because we have zero cases over the preceding 14 days, those kind of testing requirements that we've had since November still remain in place for our unvaccinated employees.

Great. And then finally on the notification requirements, and as we all know, there was legislation that went into effect in January that Kellogia also adopted. As far as notifying your employees when there's an exposure at the workplace, that still remains, however, Rob, maybe you can discuss what was added to that requirement.

Yes, there was a surprising ad related to the AB 685 notice that many of you may have heard about remembered from last year relating to COVID 19 cases in the workplace. The addition in this standard is that if the employer is aware that either an employee did not receive the notice or has limited literacy in the language of the notice, then the employer has to provide verbal notice as soon as practicable. Now, this was a big issue for us and something we raised a lot of comments about with the board to say, listen, it's really vague as to what you mean. You know, how fast do you provide this and what is limited literacy? You know, I may have an employee who is certainly not an author of a novel or something similar, but understands the core of the notice. Right. They understand that COVID 19 was nearby. Does that person qualify as limited literacy? It's not clear. So there's a lot of question marks around that verbal notice requirement, Erica, but it's very important. I'm glad you flagged it because employers certainly should be aware of it, particularly in the less educated workforce areas.

Okay, excellent. All right, folks. Well, Rob and Matt, thank you so much. And I'd like to thank our listeners as well for joining us. And I just want to remind everybody, we've only talked about some of the highlighted changes that were put into place come June 17. There are still many provisions that remain from November. So it's really important that we take the time again to take a look at our plans, update them when necessary, continue to train your employees, educate them about the importance of washing our hands. All of those rules are still going to be into effect. Disinfection of the workplace, even though Rob mentioned some of it's relaxed the basics as far as really making sure that you're disinfecting those common areas, those doorknobs and the like, those are all still standards that we have to follow. And I really can't emphasize enough that when you go to the Cal OSHA website and you take a peek at the COVID19 citations, many of them are because the employee didn't have a plan or didn't record on the Form 300 if there was an exposure or Covid case related to it. So don't lose sight of those basic requirements. They're easy to miss, but they're also easy to meet. And we've come so far already. We can continue. We've got our pace going and there's no need for us to fall behind at this point. Finally, as far as those resources, as Rob had mentioned, the Calosha FAQs, eventually they will be merged. So depending upon when you go look at the FAQs. But Matt and I find these FAQs extremely helpful because they're dated. And what's also really nice about The Cal OSHA FAQs is they footnote and tell you when changes were.

Very easy to follow. Sometimes we see in other agency FAQs they just update it without letting us know what the changes were. But here we can see them. So that is very helpful to all of us trying to comply and administer these changes. And with that, Matt, do you have any remaining thoughts or comments that you wanted to pass on to our listeners?

No, I think that touched really the key points that I think employers need to know, especially for for immediate compliance with these regulations because it's really important to note that these are effective now as we've been talking. And so to the extent you have any questions, touch base with the FAQs first and then as always, seek advice from legal counsel on any other gray areas.

And Rob, any closing remarks?

No, I think you've nailed it. Really take a look at those FAQs. Be safe, get vaccinated. And I think we're good.

All right, thank you both for joining us on the Workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.