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Employers must provide respirators to unvaccinated employees under revised Cal/OSHA emergency standards

Update: New Cal/OSHA standards took effect June 17

June 07, 2021 8800

Update: Cal/OSHA on June 9 determined it would reconsider the regulation at its June 17 meeting. At that meeting the board approved new changes to the emergency temporary standards that took effect the same day after Gov. Gavin Newsom signed an executive order.

Revisions to the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards are expected to take effect as early as June 15 with two new major requirements for California employers, including the requirement to make respirators available to unvaccinated employees for their voluntary use.

The revisions ease requirements related to face coverings and testing for fully vaccinated individuals, as well as for physical distancing beginning July 31, while other temporary standards for the use of appropriate eye and respiratory protection that took effect last November will remain unchanged.

Target effective date would coincide with governor’s reopening plan 

The Cal/OSHA Standards Board on June 3 approved the proposed amendments after more than seven hours of public comment and board discussion that initially resulted in a majority vote against the proposed changes. After further discussion and agreement to form a subcommittee to make changes for a third emergency regulation, the board voted to reconsider the proposed amendments and went on to approve them the same day.

The proposed changes now go to the California Office of Administrative Law for approval. If the OAL approves the amendments, most of them will take effect June 15 ― coinciding with Gov. Gavin Newsom’s plan to reopen much of the state’s economy as long as counties reach specified public health metrics. Other new requirements will take effect no later than July 31. 

Providing COVID-19 testing, respirators for unvaccinated employees

One temporary standard in place since Nov. 30, 2020, did not change: Employers must continue to “provide and ensure use of eye protection and respiratory protection in compliance with section 5144 when employees are exposed to procedures that may aerosolize potentially infectious material such as saliva or respiratory tract fluids.”

Requirements for physical distancing, COVID-19 testing and the use of face coverings will be lifted for fully vaccinated individuals when certain conditions are met. But two significant changes require employers to make respirators and COVID-19 testing available to unvaccinated employees at no cost to the employee beginning no later than July 31. 

The new Cal/OSHA standards consider an individual fully vaccinated if at least 14 days have passed since the individual received a single-dose vaccine or the second in a two-dose vaccine ― and the employer has documentation of the vaccination.

Additionally, scarves, bandanas and any other single-layer fabric face coverings are excluded from the new, narrowed definition of face covering. A face covering means a surgical mask, medical procedure mask or respirator or a mask made from a tightly woven material or unwoven material if it is at least two layers.

Here are summaries of the specific changes:

  • Employers must provide respirators to employees who are not fully vaccinated for their voluntary use no later than July 31. 
  • Employers must make COVID-19 testing available to employees who are not fully vaccinated and are exhibiting COVID-19 symptoms beginning July 31. The testing must be made available at no cost and during employees’ paid time.
  • Fully vaccinated employees without COVID-19 symptoms do not need to wear face coverings or physically distance in a room in which everyone is fully vaccinated and not showing symptoms.
  • Fully vaccinated employees who do not have COVID-19 symptoms and employees who had COVID-19 in the 90 days prior are not required to be tested for COVID-19 after a close contact in the workplace. “Close contact” is defined as being within 6 feet of a COVID-19-positive individual for more than 15 minutes in a 24-hour period within or overlapping the high-risk exposure period.
  • Employers can eliminate physical distancing and barriers for employees working indoors and at outdoor mega events if they provide respirators, such as N95s, to unvaccinated employees for voluntary use. After July 31, physical distancing and barriers are no longer required except during outbreaks.
  • Employees who are not fully vaccinated and who had close contact with a COVID-19-positive or symptomatic individual may return to work after 10 days if they never developed symptoms.
  • Employees who are not fully vaccinated and who had close contact with a COVID-19-positive or symptomatic individual and developed COVID-19 symptoms may return to work only when the following are true: (1) The employee has a negative PCR test taken after symptom onset, (2) at least 10 days have passed since the last known close contact and (3) the employee has been symptom-free for at least 24 hours without the use of fever-reducing medication.

CDC guidance for fully vaccinated people does not apply to health care facilities

Employers can find the Cal/OSHA definitions of “close contact,” “face covering,” “COVID-19 symptoms,” “outdoor mega event” and other terms in the revised standards.

CDC guidance for fully vaccinated individuals does not apply to health care facilities. Face coverings and social distancing are necessary when patients, even if fully vaccinated, are in the same area as employees.

An updated template for CDA’s COVID-19 Prevention Plan, Addendum to the Injury and Illness Prevention Plan, will be available by June 15. Employers should update their required written plan.

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