California’s new COVID-19 prevention regulations adopted today allow employers greater freedom in some respects and impose new burdens in others. The regulations adopted by the Cal/OSHA Standards Board go into effect any day now once they are formally filed with the Secretary of State.
The five changes of greatest importance to employers are:
- Fully Vaccinated Employees are not Required to Wear Face Coverings!
The new regulations do not require fully vaccinated employees to wear face coverings any longer in the workplace. “Fully vaccinated” under the regulations means the employee received, at least 14 days earlier, the second dose in a two-dose COVID-19 vaccination series or a single-dose vaccine.
Employers are required under the regulations, however, to provide compliant face coverings and “ensure they are worn” over the mouth and nose of all employees who are not fully vaccinated. Employees who are not fully vaccinated must wear face coverings when indoors or in a vehicle, with limited exceptions. In order to be compliant, a face covering must, for example, consist of “a tightly woven fabric or non-woven material of at least two layers,” reflecting a more demanding standard for face coverings under the new regulations. Bandanas, scarves and other single layers of fabric are not compliant face coverings.
Another new provision makes it unlawful for employers to “prevent any employee from wearing a face covering,” whether the employee is fully vaccinated or not, unless the face covering would create a safety hazard. In other words, employers cannot prohibit even fully vaccinated employees from continuing to wear face coverings, if the employees wish.
In order to treat employees as fully vaccinated for any purpose under the new regulations, employers must have “documented” that employees are two weeks out from their second dose of a two-dose vaccine or a single dose vaccine. The regulations do not make clear whether employers must keep a copy of employees’ vaccination cards. Cal/OSHA staff comments at today’s Standards Board meeting suggested that employers may satisfy the documentation requirement by maintaining employee self-attestations or similar documents rather than keeping copies of vaccination cards. I expect Cal/OSHA to publish Frequently Asked Questions on the new regulations shortly that address the documentation requirement.
- Employee Screening Requirements Remain in Place
Like the original regulations, the newly adopted version requires that employers screen employees, including those who are fully vaccinated, for COVID-19 symptoms before allowing employees to begin work. Self-evaluations generally satisfy the requirement.
- Physical Distancing Requirements are Out
The requirements in the prior Cal/OSHA regulations that employers keep employees at least six feet apart does not appear in the new regulations. In the place of physical distancing, the new regulations rely on vaccination, face coverings and, in some instances, respirators, such as N95 filtering masks, to protect employees.
The prior Cal/OSHA requirement that employers maintain plexiglass or other barriers between employees or employees and customers does not appear in the new regulations. Unless such barriers are required by a city or county ordinance, employers generally may take them down.
- Stock Up on N95 Masks and Other Respirators
In another significant departure from the prior regulations, the new rules require that employers provide respirators for voluntary use to all employees who are not fully vaccinated and who are working indoors or in cars or trucks with more than one person. Respirators are a step above “face coverings.” Respirators are devices designed to protect the wearer from particulate matter. A list of CDC-approved respirators may be found here and includes N95 masks.
- Employers are Stuck with a Greater Obligation to Provide COVID-19 Testing
Employers are required under the new regulations to make “COVID-19 testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated, during employees’ paid time.” The new requirement is an expansion of employers’ obligation to provide employees testing, as the prior regulations required only that employers provide free testing to employees who suffered a workplace exposure.
This overview is meant to alert you to the changes made by the new regulations that will have the greatest impact on most employers. The new regulations contain many other changes, large and small, for employers operating in California. The new regulations may be found here.
Please keep in mind that city and county ordinances may impose more restrictive requirements on employers operating in their jurisdiction.
For help with questions on this subject, please contact your Fox Rothschild LLP counsel or the author.
This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.