SACRAMENTO — The Occupational Safety and Health Standards Board (OSHSB) adopted changes to California’s COVID-19 emergency temporary standard (ETS) after a contentious 10 hour hearing with over 800 people in attendance last night. These changes will go into effect statewide no later than June 15th. Cal/OSHA will be issuing FAQs to assist implementation by employers. Meanwhile, additional clarifications and changes for vaccinated workers were promised to be considered at one of the next OSHSB meetings on June 17th or July 15th.
At the hearing, CAL SMACNA testified against Cal/OSHA’s proposal to maintain masking and social distancing requirements for vaccinated workers. We also joined a large coalition of trade organizations and businesses led by the California Chamber of Commerce expressing concern and opposition to several more of Cal/OSHA’s proposed changes. The general concern was that Cal/OSHA staff did not update the standard sufficiently to meet the most recent CDC guidelines. The coalition letter that was submitted to the Occupational Safety & Health Standards Board detailing these concerns can be found HERE.
Initially, the OSHSB listened to us and others and voted to reject Cal/OSHA staff’s proposed changes because they were confusing and didn’t properly align with the CDC guidelines for vaccinated workers. After a short break, they then reversed this vote and ultimately approved the proposed Cal/OSHA changes on the notion that these proposed changes were still better than the current standard adopted in late 2020; and the additional clarification, changes for vaccinated workers, and the better alignment with CDC guidelines could be added at one of the next OSHSB hearings on June 17th or July 15th.
So what do the current changes accomplish?
The current set of amendments provide some exemptions from a range of requirements for vaccinated employees. Specifically, vaccinated employees will be exempt from the 10-14 day quarantine requirements (if they are free of symptoms) of the ETS (and accompanying pay), as well as testing, and portions of the social distancing, transportation, and housing requirements. However, they will need to continue wearing masks and social distancing where unvaccinated people are potentially present. Also, “outbreaks” will now only be triggered by 3 or more cases among employees, as opposed to the prior language; which allowed non-employees passing through a workplace to count towards the trigger for an “outbreak”.
However, there are also new provisions that may add costs for compliance; and unfortunately the proposed regulations do not conform to the most recent CDC guidance. This will create an inconsistent standard in the workplace as compared to the rest of the State after June 15th until OSHSB adopts further changes to this rule by July 15th.
Continued Masking, Social Distancing, and Provision of N95 Respirators
Of particular concern to the industry coalition is that the amended ETS is inconsistent with the CDC’s present guidance regarding vaccination. As of May 13th, the CDC has advised that vaccinated individuals “can resume activities without wearing a mask or physically distancing . . . ” In contrast, the amended ETS will continue to require social distancing until July 31st, and effectively requires masking for vaccinated individuals until 2022 by requiring 100% vaccination in the workplace for employees to cease wearing face-masks.
Employers will need to stockpile N95 respirators in different sizes and shapes to accommodate all workers each day. Under the proposed changes employers will need to make N95 respirators available for vaccinated and unvaccinated employees under various conditions both before and after July 31. The CalChamber estimated that around 2 million workers may be in this category by the end of July.
Ventilation and Filtration
One element of the changes supported by CAL SMACNA will require employers to provide increased air exchange and filtration of indoor environments in minor outbreaks. In the amendments, Cal/OSHA duplicated the obligation to provide MERV filters (which was previously applicable to major outbreaks) to now also apply to any outbreak, meaning that employers with three cases will need to look at ventilation assessment and air filtration improvements to their workplace.
Record Keeping Requirements
Another primary concern of CAL SMACNA and the coalition is the proposed requirement that employers maintain records containing their employees’ vaccine status. This can be problematic for employers because California requires such employee health records to be kept for the duration of employment plus 30 years. Maintaining those records for that long, and in a way that protects privacy, is a primary concern for all employers.
Date to Watch: July 15, 2021 – Is Cal/OSHA and OSHSB Sincere in Their Commitments to Additional Changes to the Rule?
Cal/OSHA was directed to work with the OSHSB members to develop changes to the proposal that would both clarify and address primary concerns of the business community, including aligning measures for vaccinated workers more closely to CDC guidelines. This new proposal is promised to be up for consideration and adoption by July 15th. CAL SMACNA is hopeful Cal/OSHA staff does not find ways to delay making these proposed changes for consideration by the OSHSB. Any delay beyond July 15th will bring into question whether or not Governor Newsom’s OSHSB is sincere in their commitments made to the public and business community during the hearing.
Cal/OSHA is expected to release FAQs for the newly adopted changes to the emergency regulation in the next week. CAL SMACNA will immediately provide these FAQs to our members once available. As we progress towards additional changes in July we will continue to keep our members informed.