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.

To read this article in its entirety, please click here.

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.

To read the article in its entirety, please click here.

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.

The Occupational Safety and Health Administration (OSHA) has determined that it will consider an adverse reaction to the COVID-19 vaccine a “work-related” recordable illness if an employee is required to take the vaccine as a condition of employment.

To read the full article, please click here.

Frustrated by constantly shifting guidance and shortages of respirators and other personal protective equipment experienced in 2020, employers are rejecting Occupational Safety and Health Administration (OSHA) citations for COVID-19 infractions and contesting them like never before.

To read the article in its entirety, please click here.

The Occupational Safety and Health Administration (OSHA) was directed under an executive order to promulgate an Emergency Temporary Standard (ETS) to address COVID-19 no later than March 15, 2021. It has yet to do so.

To read this article in its entirety, please click here.

The coronavirus (“COVID-19”) pandemic has continued to evolve, with COVID-19 cases declining in some areas and vaccinations being rolled out in phases by local public health authorities. Yet widespread vaccinations are not expected to be in place until later in 2021, with many Americans not having access to vaccines until May or June at the earliest. Even so, some states view the evolving circumstances as sufficient to lift restrictions and start returning to “normal.” Mississippi and Texas, for example, have recently lifted mandated requirements on state residents to wear cloth face coverings, capacity limitations on businesses, and other COVID-19 related restrictions. Other states, such as Idaho, Nebraska, and Oklahoma implemented COVID-19 restrictions, but did not go so far as to require residents to wear cloth face coverings or masks while in public. While a majority of states still have mask mandate laws, the inconsistency and changing requirements in COVID-19 restrictions continues to pose challenges for employers in determining how to provide a safe work environment. Employers must also carefully balance workplace safety considerations with workplace cultures, polarized viewpoints, and continually changing dynamics.

As states continue to modify and rescind COVID-19 executive orders and restrictions, employers also need to remember that they may have ongoing obligations under other federal or state laws. From a federal level, employers are currently subject to the General Duty Clause in the Occupational Safety and Health Act (“OSH Act”), which requires employers to provide a safe and healthy workplace that is free from recognized hazards likely to cause death or serious physical harm. For this reason, employers generally need to evaluate COVID-19 hazards in their workplace and implement responsive preventive controls, even if there is no standing executive order compelling this action. To satisfy their General Duty Clause obligations, employers most likely need to comply with federal OSHA guidance directing employers to maintain written COVID-19 Prevention Plans and implement preventive measures, such as employee use of masks, social distancing, and enhanced cleaning and disinfection measures. Employers may also need to implement engineering (e.g., installation of barriers) and administrative controls to address potential COVID-19 hazards from their operations. Retailers, for instance, may need to consider redesign of workplaces, installation of barriers, and methods for contactless interactions to prevent employees from being exposed to COVID-19 through public or customer interactions.

Some states have also adopted emergency temporary standards that impose strict obligations on employers. California and Oregon, for example, have extensive emergency temporary standard requirements, which include requirements for employees to wear masks or cloth face coverings when there is a potential for interaction with others. Following behind Virginia, these states are also in rulemaking proceedings and plan to enact a permanent COVID-19 standard. Federal OSHA has even more signaled to employers that it intends to issue even stricter COVID-19 workplace safety and health standards and may enact an emergency temporary standard similar or more restrictive to those that have been implemented at a state level. OSHA has also conveyed that enforcement of workplace safety and health preventive measures to protect against COVID-19 exposures and spread of virus is a top priority.

It is nice to think about COVID-19 restrictions ending and life returning to normal. But even as states lift their COVID-19 related orders, employers will need to think carefully about the workplace safety measures implemented in their workplaces. Employers that operate on a national level or in multiple states may also have drastically different compliance obligations related to workplace safety requirements in different locations. This, in turn, could cause significant confusion for employees, customers, visitors, and other third parties that may be on-site. Employers may therefore benefit from engaging in proactive and transparent communications with employees and third parties on COVID-19 response measures.

If you have questions about the state orders applicable to your operations or how to comply with federal and state health and safety laws, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.