Fifteen months after the COVID-19 pandemic began, the Occupational Safety and Health Administration (OSHA) has promulgated an Emergency Temporary Standard (ETS) for healthcare employers. OSHA has published voluntary guidance for other industries.

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Since California announced plans for “preparing to get back to normal,” many California employers have eyed California’s reopening date of June 15th as the date they can return to the office or resume normal operations. But even though it is clear California wants to reopen the economy, California employers that are preparing their return to work plans are still unsure of what steps they need to ensure a safe workplace for employees as they return. This is largely because California public health and safety agencies continue to impose significant obligations on employers related to COVID-19 preventive measures and management and some requirements are pending changes.

Along with directives and guidance in California’s Department of Public Health’s (“CDPH”) Blueprint Activities and Business Tiers Chart, employers may still have obligations under local public health orders and guidance. For example, the Santa Clara County Public Health Department requires focused safety measures to reduce the spread of COVID-19, including an obligation for employers to ascertain employees’ and personnel’s vaccinated status. Los Angeles County Public Health Department’s health officer orders similarly require employers to implement strict safety protocols by industry, which include enhanced cleaning and disinfection measures, requirements for ventilation, and ongoing COVID-19 exposure assessments and management.

Irrespective of the health orders, California employers are also still subject to the Department of Industrial Relations’ Division of Occupational Safety and Health’s (“Cal OSHA”) emergency temporary standards on COVID-19, which require most California employers to implement a COVID-19 Prevention Plan and COVID-19 preventive measures. While Cal OSHA’s emergency temporary standards were first adopted in November 2020 and meant to be temporary, the standards are not set to expire until October 2, 2021. Cal OSHA is facing heavy industry, worker, and public scrutiny over its response to the pandemic and fact that it now has standards in place that do not address, respond to, or align with the most current guidance from the Centers for Disease Control and Prevention (“CDC”). Even though the agency has released guidance on COVID-19 preventive measures in response to changes in CDC guidance on fully vaccinated persons, management of COVID-19 following an exposure, and need for certain preventive measures; the guidance still conflicts with the plain language of the adopted standards. The agency is also currently evaluating whether to revise its COVID-19 requirements in response to CDC guidance for “fully vaccinated” persons. Cal OSHA’s Standards Board even released proposed revisions several weeks ago and planned to consider revisions at its board meeting in May, but ended up delaying until further revisions could be considered and an emergency meeting could be held on June 3rd. Since delaying the decision on the emergency temporary standards, Cal OSHA has not  communicated effectively with employers on their compliance obligations during this interim period or shared openly its plan for revising the standards. Instead, Cal OSHA quietly published the proposed revisions on May 28th and left employers searching their website to find the proposed changes.

Cal OSHA’s proposed changes for the emergency temporary standards show some hope for employers in being able to relax their preventive measures, but continue to impose stringent preventive measures and obligations. The proposed changes, in fact, would continue to impose workplace requirements for social distancing and use of face coverings, even for vaccinated employees. The proposed changes also include considerations for respiratory protection in workplace settings where respiratory protection has not been found to be needed to protect against potential exposures to COVID-19 under CDC guidance. Accordingly, even if adopted, Cal OSHA will still be imposing strict COVID-19 prevention requirements on employers, leading to employers that are reopening and returning to normal operations having additional workplace safety obligations even as other state restrictions may be relaxing.

California employers that are interested in attending the Standards Board meeting on June 3rd can attend the meeting by teleconference. Details on the teleconference and agenda are available here. Employers should also be on the lookout for updates from Cal OSHA following the board meeting.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

The Centers for Disease Control and Prevention (CDC) has offered new COVID-19 guidance indicating that fully vaccinated individuals no longer need to wear masks or maintain physical distance from others in most settings. However, questions about employers’ compliance obligations and general duty expectations under the Occupational Safety and Health Act of 1970 (OSH Act) remain. For example, the CDC guidance conflicts with guidance from the Occupational Safety and Health Administration (OSHA), published in January 2021, that prohibits employers from distinguishing between workers who are and are not vaccinated.

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Since the Centers for Disease Control and Prevention (CDC) offered new COVID-19 guidance allowing fully vaccinated individuals to avoid wearing masks or socially distancing in most settings, employers have been pushing the Occupational Safety and Health Administration (OSHA) and state equivalents to embrace the change, but change is slow.

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On May 20th, the Cal/OSHA Standards Board will consider changes to COVID-19 Emergency Temporary Standards (“ETS”).

The proposed changes would still require employers to have an established written COVID-19 Prevention Program (“CPP”) that covers everything from training and communication with employees to the investigation of COVID-19 cases in the workplace.

However, there are notable proposed changes in the requirements for the CPP, definitions, and COVID-19 case management procedures, which will have significant impacts on California employers.

To read the full article on our California Workplace Law Blog, click here.

As the federal government and state of California adjusted their COVID-19 guidance for vaccinated individuals, Cal OSHA remained silent on how vaccination affected the requirements under its COVID-19 Emergency Temporary Standard (ETS). While there had been discussions of revisions to the ETS, it was unclear if Cal OSHA would be able to release such revisions prior to the targeted reopening of California by June 15, 2021.

To read the full article on our California Workplace Law Blog, click here.