Episode 141: COVID-19 Workplace Safety Rules Update

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Employment Law Council and the Labor Law Helpline Manager with the California Chamber of Commerce. Well, everyone, as we record today, we're here in the studio about to turn the page on 2021. Look ahead to the promise of a new year. You know, for many of us this time of year is often quieter as we celebrate the end of the year holidays. But, but for us here at the Chamber, these last few weeks have been anything but quiet as we've worked hard for the business community to keep them up to date on the absolutely furious amount of activity that's coming from both the state and national level governments relating to COVID 19. Although there is so much new for us to discuss today, and we will hit on a lot of important points for everybody today, I have to tell you, I've had a serious case of deja vu from December 2020 between when we were trying to decipher the new Cal OSHA ETS when they were brand new at that point last year, as well as seeing, you know, the rising cases that I think we're seeing again here as we go into the new year.

And for employers, you know, there's so much new that's happened in the last few weeks in terms of workplace safety rules that I really had to bring in one of the experts for this discussion. And so I am very excited to return Cal Chambers own Robert Moutrie to the podcast. Robert is our policy advocate focusing on education, occupational safety, tourism, unemployment insurance and immigration issues for the business community. Welcome to the show, Rob.

Thanks, Matthew. Great to be here again.

It's so great to have you. Now there's so much to cover today and I think you and I really just want to dive in to make sure that we hit all the most salient points. And where I really wanted to start today was what's been the most recent news, which was the CDC came out and changed its isolation and quarantine guidance regarding asymptomatic Covid cases or exposures to known Covid cases. And this is something that on the helpline I've seen a lot of in the last week in terms of what is this, how does this impact us here in California? And so, Rob, can you take us through really what the CDC did and how it impacts what we have to comply with here in California?

Yes. So on December 27th, the CDC came out with new guidelines on quarantine and isolation. For myself, right. This was just after Christmas. I think it snuck by a lot of Folks, but for what that means, right, I should first break out isolation and quarantine. Isolation refers to positive cases. Quarantine refers to those who exposed who haven't yet been confirmed as cases. And the new timelines are shorter than prior timelines for excluding someone. For asymptomatic cases, you need to be, if you are, that is a positive test, isolate for five days plus wear five days of face covering. Similar for asymptomatic exposures or asymptotic, vaxxed or unvaxxed. You have this 10 day timeline either for exposure of asymptomatic vaccinated cases. You have no quarantine time, but you have to wear a face covering for 10 days. And for those unvaxed who have exposures then and asymptomatic, then you have five days of quarantine plus five days of face covering. And I want to tweak that, which is important things to remember here. Number one, these shortened timelines apply to asymptomatic cases. So if you are a case, you have symptoms, right? You're coughing, you have trouble breathing, all of those matters, then these shorter timelines aren't going to really shorten yours. You still need to wait out through your symptoms, of course. One other big change I want to highlight here is that notably the CDC changed the definition of vaccinated. This does not call you vaccinated just because you've had the two doses. You have to have had the booster if it's been six months. And that's an important change for employers to keep in mind here because even though this doesn't apply in California yet, and I'll get to that in a moment, I think that's a harbinger of changes we expect to see in California coming in early 2022. Now, how does that apply to California? As to California where we are governed by CDPH's orders and obviously the Cal OSHA etsy that does not immediately take effect in California. However, we do expect CDPH to issue an order matching this soon. And when CDPH issues that order, then by operation of an existing executive order from the governor from last year, these new timelines will replace the timelines in the Cal OSHA workplace ets. So that means that as of right now, these don't apply to us, but we very much anticipate that CDPH order any day. And when that does come out, these should be applying inside of the workplace ETS or they will apply to workplaces soon.

Yeah, and I think as you highlighted there, in just describing The CDC isolation and quarantine guidelines. There's just a lot of nuances to these things that employers now need to be more aware of. When we first started this last year, there wasn't a distinction between vaccination or unvaccination. There wasn't a distinction between asymptomatic and symptomatic. And so employers, I think in my mind, and when I talk to them on the helpline is that they're just going to have to be more on top of how these rules work if they want to take advantage of these rules. A point I like to tell them is that if you want to be safer, you can always be more stringent in your rules in terms of how we comply with this. But I know a lot of employers are looking to return individuals back to work as soon as they can because of staffing shortages and the like. And so I think it's going to be important for employers to stay on top of that government guidance. Right. And you mentioned cdph, the California Department of Public Health. We've talked about the Cal OSHA ets and you know how they extend here. And you know, speaking of Cal osha, a lot of my members have been calling because they heard that things are changing with the Calosha ETS or things may have already changed. Rob, I think you could shed some light on where we are at the Calosha ETS today and where it's going here in the near future.

Yes. So in addition to the CDC changes, we have changes coming with Cal osha. At the December board meeting, Cal OSHA approved a new version of their emergency regulation. Now, obviously this has been evolving throughout 2021 and so we've seen changes here before. We have another round of changes that go into effect January 14th. Again, these were voted on at the December meeting and the text is public. It's posted big picture, the top level changes people should look for here. You're going to see vaccinated workers need to be treated more like unvaccinated workers in the sense that you're going to have requirements for testing vaccinated workers after exposure, whereas previously testing was limited only to unvaccinated workers. And you're also going to see some changes to post exposure protocol. Notably, vaccinated workers after a close contact in the workplace will need to either be excluded or or socially distance in the workplace. And I think a lot of workplaces aren't ready for that because they haven't social distanced since June reopening. So I think that's something Employers should really look at and prepare for coming into January.

Yeah, and social distancing is something that's actually popped up again on a number of my calls because with the rising cases, we have the rules in the Calico ETS that require us to exclude close contacts who are unvaccinated at this point in time. And so the question always comes up, well, you know, how do I determine close contact? How do I avoid this issue? And it's really a time and distance thing. You know, the ets, as they currently stand, didn't require social distancing, but it's always been a good practice for employers because we won't have close contact issues if we're able to maintain social distancing. Now, you know, some employers weren't able to do that because of their operations and whatnot. But to the extent that you can social distance in the workplace, even though it's not required, it's a best practice to avoid these close contact and these exclusion issues. In my mind, something else that was discussed at the ETS meeting that you attended, Rob, was talk of face coverings. There was an interesting discussion about light tests and cloth face coverings that you might be able to relay a little bit on. But also the most significant face covering news came down a couple weeks ago with the CDPH face covering guidance. And Rob, can you take us through briefly what happened there and how that impacts the workplace?

Yes. So CDPH put out a face covering mandate here on December 13th and I'll touch on the CDPH face covering mandate and then touch on the ETS for ease. So again, another December drop from cdph.

This face covering mandate required face coverings in all indoor public spaces. Now, there was a little bit of uncertainty as to what that meant at the time, but big picture, it's now been resolved via FAQs that it applies to all workplaces where a worker is not truly alone. Right. If there are multiple workers around, even if your office isn't open to the public, Cal Chamber, our office is not open to the public, at least not back where mine is tucked away. You can't just walk in. If you have a workplace that's not, even if it's not really open, this will still apply. So basically all indoor spaces, if you're not alone, this masking order is going to apply to you. Now, for this reason, to back up to what we just talked about about with CDC's guidelines, for this reason, if you have someone you have to exclude for five days, let's say they're an asymptomatic unvaxed exposure, exclude for five days and then wear a mask for five days. The wearing a mask isn't really much of a change since that's presently in effect. But this CDPH order is going to apply only through January 15th. It's just for the next couple of weeks. And this was aimed really at preventing winter spread as people went home for the holidays and came back to the workplace. So that you have a masking order for all indoor public spaces just until January 15th. We don't expect it to be extended, but we'll have to see what the delta numbers are then.

Right. And, you know, with. With these changes coming to the Kalosh ETS on January 14, something that's always been really helpful for our members has been the FAQs and the guidance that CALOSH has put out as things kind of have evolved and changed. Do you expect that CALOSHA will clarify some of the finer points in the new changes coming forward about the return to work protocols and new testing protocols and the like, and when employers should expect to see that kind of stuff?

Yes, I do think there will be FAQs coming from Cal OSHA. And this touches on the point you raised a moment ago about the new masking requirements and the light test for masking, which I didn't touch on. So let me answer that here. The version of the emergency regulation that will come into effect on January 14th includes changes to the definition of what is a qualifying face covering. And they introduced this new element called a light test, which is fabrics must not let a light pass through to qualify as a mask. This generated a lot of strange discussion, and I expect an FAQ on it because as I'm sure the listeners at home know, many things that we've been wearing as masks, including even surgical masks, allow some amount of light to pass through. You know, if you're in a dark room and you put a flashlight behind that, you're still going to have some light. So I expect FAQs on that point and some others as we head into January.

Excellent. Well, as we know, Cal OSHA has not been the only OSHA entity making news over the last few weeks. There's been a lot of confusion with my members on the helpline about federal OSHA's vaccine or test rule. That's been kind of on this long odyssey through the courts over the last couple of months. And a lot of questions are just coming up in general about what does this mean? Does this affect us, what are we doing here in California? And so Robin, I give you open floor here to kind of just talk about, you know, what the OSHA vaccine and test mandate really does and how this really impacts California.

Yes. And I'll try to keep this as approachable to non lawyers as possible. It is not certainly an easy thing to follow. So we had the two separate federal mandates, the 100 plus employer mandate and the federal contractor mandate, both about vaccines. They both were tied up in the courts. We expected them to make their way to the Supreme Court and, and now we see that coming. Here's the short version of what we need to know. The 100 plus employer mandate had been stayed by the 5th Circuit, so it was not being enforced nationwide. The 6th Circuit lifted that stay. So now Fed OSHA is moving forward with enforcement of the 100 plus employer mandate. However, it has been appealed to the Supreme Court and the Supreme Court will hear arguments on January 7. In the interim, it is in effect for certain states, not for California. I'll get to that in a second. But the Supreme Court will hear it on January 7th and then they will issue an opinion sometime shortly thereafter. It's not clear exactly when. How does that apply to California employers now for California, because California is what's called a state plan. Fed. OSHA's regulations do not immediately apply to us. California has to then adopt them within 30 days and it's required to do so by statute. So what's going to happen is Cal OSHA is going to vote on the vaccine mandate at the January standards board meeting and will be basically required to adopt it as is written by statute with the federal version. So there won't be changes. They will be voting on it then. The reason this is a little complicated is we don't know what the Supreme Court will have said by then or not. So we're going to have to wait and see. And January is going to be one of those moments where we're watching the Supreme Court closely because if they uphold it, Cal OSHA will likely vote the vaccine mandate into effect in mid January and we'll have it in effect pretty quickly here thereafter. If the Supreme Court does not uphold it, of course, then that's off. So California employers need to keep watching that on the enforcement side. Just to skip ahead, one question, if you don't mind.

Yeah.

If that's voted on, the question is when does it go into effect? What do I need to do when? And there's some ambiguity there. Fed OSHA has published deadlines for the states where it's an application of January 10 to have most of the organizational elements of the plan in place. That is having some leave having a plan in place, some of the kind of side details and then February 9th as a date for vaccination actually being completed or or have a testing program in place. Those dates wouldn't really make sense in California if we are adopting it. Mid January as one of the dates will have already passed. So we're not sure how Cal OSHA is going to implement those deadlines given that California would be starting a bit after the federal. But that's a question we'll have to watch for as we head to Cal OSHA's meeting in the mid month.

Okay. And so one more I wanted to tack on there is and highlight something that you said is that California doesn't look like they're going to make any changes to what the folks federal OSHA rule looks like. Really. So for employers they're looking for guidance. Should we prepare now? Could we take steps to prepare now? Could we just start implementing this now? What have you been telling members and kind of things to look for as they sort of prepare? Since we do have the rule, we just don't know if it's going to apply by the time, you know, the board meeting comes around for Cal osha.

Yeah, that's a good question. So substantively I didn't highlight what's in the rule. Let me briefly touch on that for context. So the federal vaccine mandate substantively is what we call a soft mandate requiring either vaccination or weekly testing for unvaccinated employees. Now what can you do to get ready if you think it's going to pass? So what's going to happen? Supreme Court is obviously the big issue.

I don't know which way that'll go. But let's say if we assume that the Supreme Court's going to pass it, then you could start getting ready A couple of ways. You could start getting ready first by trying to figure out how you're going to collect.

How you're going to keep track of who is and who isn't and how you're going to have weekly testing set up. That's something you can start to get ready for if you want to another place and maybe the better place I would push people to start getting ready. Putting aside this piece is to consider finding out about or encouraging boosters in their staff. Encourage boosters because that's a big question Coming this year we expect the Fed vaccine mandate and California to move towards requiring boosters for someone to be fully vaccinated. Not necessarily in early 2020, but say spring to summer 2022. Excuse me. So that is a change which, if you're looking forward, I might think about.

Excellent. Okay, Rob, we've covered quite a bit here. I think what would be great for everyone to hear is what's on the horizon. You've kind of touched it, but I think it'd be good to kind of coalesce everything into here's where we are and here's what should be coming down shortly as you've kind of discussed throughout the course of the podcast. So what should we be looking for, Rob?

Well, the first thing we have to do is we all have to keep our eyes open as we move into January. Right. There's gonna be a lot of the news there with the news in the federal vaccine mandate from the Supreme Court potentially, and also CDPH issuing potentially quarantine orders. So those are the things. First two things to watch for in the first couple weeks and then the last one that I'll emphasize again is we anticipate changes to the definition of fully vaccinated in California's regulation to mirror what has already been done in the CDC's quarantine guideline. And that is requiring you have that booster if it's been six months. So that is, I think, the big thing that employers should expect in a later term. And that will also include record keeping issues in the later term, such as keeping potentially actual proof of vaccination. Right. Not self attestation, potentially vaccine cards as a record keeping issue. So that's a longer term concern. But I think on the short term, watch the Supreme Court, watch for CDPH order, and in the longer term, prepare for changes to the vaccine definition to require boosters and more proof. I think that's coming in mid-2022.

Excellent. Well, what I want to leave everybody with today is really, you know, how to watch for these things. Something that we talk about on the helpline and in our seminars as well is, you know, staying up to date with these government websites. Rob has thrown a lot of Alphabet soup out at everybody. It's something that we're just mired in and we get used to it. But you know, the, the entities that we're really looking at as we move forward is the California Department of Public Health. You know, they're the ones who issued the face covering guidance. They'll be the ones who will update the isolation and quarantine guidance. We're looking at Cal osha, they have that ETS FAQ page that, you know, we expect will be updated as we get closer to January 14th. And then, of course, us here at the Chamber, our HR Watchdog blog puts out stuff on a daily basis. And we've been really on top of trying to get this news out as quickly as possible. So if you're already a subscriber to the HR Watchdog or to the Capital Insider blog, which is our advocacy wing that Rob has written on several times, those are two blogs that will get you information very quickly as well. So, Rob, it was good having you on again. Thank you for joining us today.

My pleasure, Matt. Thanks for having me. And good luck to you. Stay healthy. And good luck to everyone out there listening.

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