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In recent weeks, state and federal regulators have proposed new regulations covering COVID-19 workplace safety and vaccine mandates. Below is a summary of recent developments and CSDA’s engagement.

The federal Occupational Safety and Health Administration (OSHA) released its draft COVID-19 vaccine emergency regulation for employers with 100 or more employees.

The Federal Occupational Safety and Health Administration (OSHA) published on November 5 its Emergency Temporary Standard (ETS) for workplace vaccinations of employers with more than 100 employees. Cal/OSHA is now required to adopt its own standard that is at least as stringent as the federal ETS within 30 days, which would cover state and local agency employees – including special districts.

However, on November 6, 2021, the United States Fifth Circuit Court of Appeals stayed the ETS pending expedited judicial review. Additional briefing will be submitted during the week of November 8 with a decision on a permanent injunction anticipated as soon as November 12. This has thrown into question the timeline for Cal/OSHA’s adoption of its own standard. It is likely that Cal/OSHA will continue with development of its own standard, and employers should prepare as though it will be promptly adopted.

Access the Federal OSHA ETS here.

Click here for an OSHA FAQ document covering the standard.

What Cal/OSHA must base its rule on

Under the federal ETS, subject to any stays and injunctions, impacted employers will be required to establish by December 5 masking policies and paid vaccine leave policies for employees to leave work for vaccination and recovery from post-vaccination symptoms. According to the rule’s FAQ document, employers’ policies must include a provision that all employees be fully vaccinated by January 4, 2022. Booster shots are not included to determine an employee’s “full vaccination” status. Cal/OSHA’s rule could include dates sooner than required in the federal ETS, though as noted above, the timeline may change due to the stay of the federal ETS.

To meet federal employer reporting requirements, employees will be required to demonstrate proof of vaccination or be subject to weekly testing. Employers will be required to retain these records. Employers will not be required to pay for employee testing or vaccinations unless a state/local law or collective bargaining agreement dictates otherwise. Moreover, the Cal/OSHA rule could impose more stringent requirements than these federal rules.

There are only three categories for an employee to claim an exemption to the vaccine mandate under the federal rule: 

1. those for whom a vaccine is medically contraindicated,
2. those for whom medical necessity requires a delay in vaccination, or
3. those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

All non-vaccinated employees subject to the mandate, including those claiming the abovementioned exemptions, will be required to wear facemasks in indoor workplace settings. Unvaccinated employees must submit weekly tests taken at a licensed healthcare provider and provide proof of tests. Employer policies must require COVID-positive employees, regardless of vaccination status, to report the positive test and be removed from the workplace until receiving clearance from a medical provider or for the period of time recommended under CDC guidance.

Under the federal ETS, employees working from home or those who work exclusively outdoors may not be subject to weekly tests in lieu of vaccination. Employees working from home will be required to be tested for COVID-19 within seven days prior to visiting or returning to the workplace and provide documentation of the result to the employer. Under the policy, these employees still count toward the employer’s count of total employees. This means if there are 200 employees in the organization with 175 working remotely or exclusively outdoors, the ETS would still be applicable for the organization.

Individuals who are part-time employees and/or seasonal employees employed directly by the organization all count as one full employee toward an employer’s count of total employees. Independent contractors do not apply to the total employee census.

Under the federal ETS, non-compliance will result in OSHA’s maximum penalty of $13,563 per violation.

Cal/OSHA will release text of its employer vaccine mandate this month, and it is expected to adopt its rule as soon as November 18, unless its timeline for adoption is changed due to the stay of the federal ETS. California employers should gear up for the Cal/OSHA rule, which may be more stringent than the federal OSHA ETS, and regularly monitor Cal/OSHA’s website for updates (https://www.dir.ca.gov/dosh/coronavirus/).

Cal/OSHA released its proposed updates to COVID-19 Workplace Emergency Temporary Standards (ETS).

Cal/OSHA has published the text of draft proposed revisions/updates to its COVID-19 Workplace Emergency Temporary Standards (ETS). This is separate and additional to Cal/OSHA’s impending vaccine emergency regulation discussed above. It is anticipated that Cal/OSHA’s revised/updated COVID-19 Workplace ETS will be considered for adoption at the December 2021 Occupational Safety & Health Standards Board meeting. Current guidance from Cal/OSHA is that, if adopted, the revised ETS would be effective from January 14, 2022 - April 14, 2022, after which a permanent standard will be in effect.

A link to the complete proposed revised ETS text, including a redline of changes, can be found at: https://www.dir.ca.gov/dosh/doshreg/covid-19-emergency-standards/Proposed-second-readoption.pdf.  CSDA is evaluating the proposed permanent standard as well. Note that both the revised ETS and proposed permanent standard were released prior to the release of the federal OSHA, or anticipated Cal/OSHA, COVID-19 vaccine mandate text, and therefore may be subject to further revision.

The revised ETS will make some significant changes to the current ETS, with some of the most significant changes relating to social distancing and testing requirements, even for vaccinated individuals. This appears to be a result of “break-through” infections in vaccinated individuals and concerns from labor/public health.

In response to the proposed revised ETS, CSDA’s advocacy team quickly obtained feedback from the CSDA Human Resources and Personnel Expert Feedback Team and CSDA will join a coalition letter addressing concerns arising from the revisions to the ETS. The coalition letter will be made available to CSDA’s membership once it is transmitted to Cal/OSHA.

Although the revised ETS is in draft form, and subject to further changes, a summary of the most significant changes is below:

1. Under the revised ETS (California Code of Regulations, Title 8, Sec. 3205(c)(3)(B)(5)), when there is a COVID-19 case at a workplace, the employer will be required, in addition to providing specified information, to make testing available at no cost, during paid time, to all employees who had a close contact in the workplace. There is no longer an exception for vaccinated employees. Revised Sec. 3205.1 similarly requires employer-provided testing for the exposed group during a workplace outbreak, with no exceptions for vaccinated employees.

1. Under Revised Sec. 3205(c)(9), employers must exclude from the workplace employees with close contact with a COVID-19 case except: 1) fully vaccinated employees who never developed symptoms, if they wear a face covering and maintain 6 feet of distance for 14 days following the last close contact, and get a COVID-19 test 3-5 days after the close contact; or, 2) specified naturally immune employees if they wear a face covering and maintain 6 feet of distance for 14 days following the last close contact. This revision removes a prior exception for fully vaccinated employees, adds masking and social distancing requirements, and requires the employer to provide information about California Department of Public Health (CDPH) recommended precautions.

1. Under Revised Sec. 3205(c)(3)(B)(10)(D)(1) – return to work – a person with a close contact with a COVID-19 case, but who never developed symptoms, may return to work following exclusion from the workplace 14 days after the last known close contact except the waiting period may be shortened as follows: 1) 10 days after the last known close contact, provided masking and social distancing are maintained for the duration of the 14 days; or, 2) 7 days after the last known close contact following a negative PCR test within a specific time period, and provided masking and social distancing are maintained for the duration of the 14 days. This revised section adds the above conditions and lengthens the exclusion period which was previously 10 days.

1. Revised Sec. 3205(c)(3)(B)(10)(D)(3) – return to work – removes an exception that reduced workplace exclusion for covered “essential critical infrastructure workers” in the following categories, to 7 days from the date of last exposure with negative PCR test, in the event of critical staffing shortages, when there is not enough staff to provide safe patient care: 1) health care workers who did not develop symptoms; 2) emergency response workers who did not develop symptoms; and, 3) specified social service workers who did not develop symptoms.

1. Under Revised Sec. 3205.3(c) – employer provided housing – unless all residents are vaccinated, the quantity of outdoor air must be increased, and filtration efficiency must be increased to the highest level compatible with the existing ventilation system in housing units. To the extent feasible, HEPA filtration (fixed or portable) must be used if there is not a Minimum Efficiency Reporting Value (MERV) 13 or higher filter in use, in all sleeping areas. Under the current ETS, this standard applies only if two or more residents are not fully vaccinated. This section does not apply to housing provided for the purpose of emergency response. Employers must also test all “residents” of housing in which there were 3 or more COVID-19 cases in 14 days (Revised Sec. 3205.3(g)). This testing requirement does not presently exist. Under Revised Sec. 3205.3(h), an exception from the “close contact” quarantine requirements (including private bathroom and sleeping area) for vaccinated residents without symptoms has been removed.

6. Additional noteworthy revisions include: face coverings required for both vaccinated and unvaccinated employees during screening (Revised Sec. 3205(c)(2)); all employees who had a close COVID-19 contact and developed a symptom must comply with the return to work requirements of confirmed, symptomatic COVID-19 cases (removing a current alternative return to work procedure) (Revised Sec. 3205(c)(3)(B)(10)(D)(2)); and, unless all employees in the vehicle are vaccinated, face coverings must be provided by the employer and worn in connection with employer-provided transportation, emergency response excepted (removing an exception for vaccinated employees) (Revised Sec. 3205.4(c)(2)).

Please visit the link above for the complete list of changes proposed to be made to the ETS.

The above summaries do not constitute legal advice, and CSDA members may wish to seek legal counsel concerning COVID-19 workplace laws and regulations.

CSDA will remain engaged with these issues.  Stay tuned to your CSDA eNews and Advocacy News for updates.