California’s New Face Covering Policy Imposes Additional Burdens on Employers

By Charles P. Keller, Brian J. Mills, and Kevin M. Brown

More than a month after the Centers for Disease Control (CDC) announced that many fully vaccinated individuals no longer need to wear a face covering or physically distance, California finally updated its workplace safety rules on June 15, 2021. On June 17, 2021, the California Occupational Safety and Health Standards Board (OSHAB) passed the proposed Emergency Temporary Standard (ETS). California Governor Gavin Newsom subsequently issued an Executive Order waiving the normal 10-day review period, causing the revised ETS to take effect immediately.

It has not been a short or straightforward journey to this destination for the Golden State, which was the first state to impose a lockdown in March of last year.  Cal/OSHA implemented the initial ETS on November 30, 2020; among its many requirements was that employees wear face coverings and practice physical distancing in the workplace.  The OSHAB was originally scheduled to convene on May 20, 2021, to consider numerous proposed revisions to the ETS, including face covering and distancing requirements in the workplace, but a series of delays and reversals finally culminated with the vote last week.   

The New Standard

While the new ETS provides a welcome reprieve for fully vaccinated employees by removing the requirement to wear face coverings and practice physical distancing in many workplaces, there are a significant number of provisions that remain intact from the initial ETS, as well as new procedures that employers need to implement.  (As a reminder, individuals are considered to be fully vaccinated two weeks after the final required dose—either the second shot for the Pfizer or Moderna vaccines, or the single shot of the Johnson & Johnson vaccine.)

First, employers are still required to maintain a COVID-19 Prevention Program, provide training to employees on the prevention program and their rights, notify the local health department of a workplace outbreak (three or more employees in an exposed group), notify employees of a COVID-19 exposure and close contacts, offer testing after potential exposure, and exclude some categories of employees from the workplace following close contact with a COVID-19 case.  Importantly, fully vaccinated employees no longer have to quarantine unless they develop symptoms.  

Next, the face covering requirement has been reduced, but not eliminated. Except in the case of an outbreak, face coverings are not required for any employees (vaccinated or not) while working outside.  And with a few exceptions, fully vaccinated employees may—but are not required to—wear face coverings indoors. 

The physical distancing and barrier requirements have largely been eliminated in the workplace and in employer-provided housing and transportation regardless of vaccination status, with the exception of outbreaks and when unvaccinated employees are eating or drinking inside.  Employers are obviously free to maintain or implement additional protective measures as they see fit, for they are under an ongoing obligation to assess workplace hazards and implement controls to prevent transmission of disease.  Finally, the ETS provides that employers are required to evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and to evaluate the use of additional air cleaning systems. 

Potential Pitfalls For Employers

The new ETS requires employers to verify and document their employees’ vaccination status.  Employers have several options as to how to determine their employees’ vaccination status.  First, employees may provide their employer documentation of their vaccination.  Employers risk creating a “medical record” if they retain a copy of an employee’s vaccination record, which requires the employer to maintain confidentiality and to retain the record for the duration of employment plus 30 additional years.  Second, employers may request proof of vaccination but not maintain the vaccine record itself.  Under this approach, employers maintain a document noting their employees’ vaccine status.  This record is not considered a medical record but should be kept confidential.  Lastly, employers can simply require employees to self-attest their vaccination status.  Here, employers maintain a record of who self-attests to being vaccinated; all other employees are assumed to be unvaccinated.  Cal/OSHA clearly states that employees have a right to refuse to answer the vaccine status question, but the employer is then obligated to treat such employees as unvaccinated.  Employers should also train employees as to the meaning of being fully vaccinated and explain the disciplinary consequences for providing false vaccination information.

The new respirator requirement poses even more possible legal pitfalls for employers.  To comply, employers should provide respirators in two scenarios—first, to any unvaccinated employee who works with others indoors or in a vehicle and who requests one, and second, to any employees in the exposed group for voluntary use when there is a major outbreak (20 or more COVID-19 cases within a 30-day period).  The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal,” or fit.  Once an employee requests a respirator, the employer is under an ongoing duty to provide one.  The CDC recommends replacing a disposable filtering facepiece respirator, such as an N95, after it becomes soiled, damaged, or has been taken on and off five times.

Not only are respirators somewhat expensive, their use is governed by the Cal/OSHA respiratory protection standard, Title 8 of the California Code of Regulations, Section 5144.  Among other things, the standard requires employers to implement a written respiratory protection program, train employees, ensure employees complete a medical questionnaire, and have employees sign an acknowledgment (Appendix D) attesting to the voluntary nature of wearing the respirator.

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Snell & Wilmer attorneys will continue to monitor federal, state, and local mandates related to COVID-19 vaccinations, testing, face coverings, physical distancing, and respirators.  For information on this ETS, its obligations, and other issues of which employers need to be aware, please contact Charles P. Keller, Brian J. Mills, or Kevin M. Brown.

Snell & Wilmer will also be presenting a complimentary, informative webinar regarding the regulations and other California governmental mandates on Wednesday, June 30, 2021. For more information, and to register, click here.