CAL-OSHA Votes to Relax Mask-Wearing Rules for Vaccinated Employees and to Change Workplace Safety Rules and Requirements

On June 3, 2021, the California Occupational Safety and Health Standards Board (Cal-OSHA) voted to relax workplace safety rules for employees who are vaccinated against COVID-19.  The rules are still subject to review by the state Office of Administrative Law.  However, assuming the Office of Administrative Law approves the rules, the new rules will go into effect on June 15, 2021.

Under the new rules, vaccinated employees are not required to wear masks if every employee in a room in the workplace is fully vaccinated and does not have COVID-19 symptoms.  Employees who are fully vaccinated and asymptomatic also do not need to wear masks when they are outdoors.  However, if any employee in the same room as vaccinated employees is not fully vaccinated, then all employees, including vaccinated employees, must wear masks.  Employees are not considered “fully vaccinated” until the employer has received documentation that 14 days have elapsed since the employee received the second dose of the Pfizer or Moderna vaccines or 14 days have elapsed since the employee received the single shot of the Johnson & Johnson vaccine.  Employers are required to keep employees’ vaccine records on file but should keep such records in the employees’ segregated and confidential medical files.  Employers should also ensure that there is proper ventilation in the office by maximizing the quantity of outdoor air.   Employers are also required to provide COVID-19 testing to symptomatic employees at no cost to employees during employees’ paid working time.

Additionally, starting July 31, 2021, employees will no longer be required to distance from one another.  Employers must provide non-vaccinated employees respirators for voluntary use, but need not require non-vaccinated employees to wear the respirators.  Until then, for employees in indoor settings or outdoor events of 10,000 or more people, employers must either (1) require employees to continue to practice social distancing (maintaining a distance of 6+ feet) except for employees wearing respirators; or (2) offer unvaccinated employees respirators for voluntary use by employees.  A respirator is defined as a respiratory protection device approved by the National Institute for Occupational Safety and Health to protect the wearer from particulate matter, such as an N95 mask.  Employers must train employees how to properly wear the respirator.

As was true under the prior OSHA emergency standards, employers are required to establish written COVID-19 Prevention Programs, which may be integrated into the employer’s Injury and Illness Prevention Program.  Employers are also still required to (1) provide face coverings to employees and require employees to wear face coverings except under the limited circumstances discussed above (note that face covering is now defined more narrowly to include only a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers); (2) provide notice of positive COVID-19 cases or outbreaks in the workplace; (3) take certain measures once receiving notice of the positive case, including making COVID-19 testing available to unvaccinated employees who had close contact with the employee testing positive for COVID-19 at no cost to the employees (no testing is required for employees who have recovered from COVID-19 within the last 90 days prior to close contact with the employee testing positive for COVID-19); (4) exclude employees testing positive for COVID-19 and those unvaccinated employees who had close contact with the employee testing positive for COVID-19 from the workplace while maintaining those employees’ pay and benefits (employers do not need to exclude employees who have recovered from COVID-19 within the last 90 days prior to close contact with the employee testing positive for COVID-19); and (5) report information about positive cases and outbreaks to the local health department when required by law.

There are additional rules relating to COVID-19 prevention in employer-provided housing and transportation.

Please contact your Hill Farrer attorney or any member of our Labor and Employment department for additional information and assistance with complying with these new standards, which will most likely go into effect on June 15, 2021, if they are approved by the state Office of Administrative Law.