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COVID-Emergency Regulations Remain As Is – For Now
May 24, 2021

COVID-Emergency Regulations Remain As Is – For Now

Topics: COVID-19, OSHA Issues

Last week, on May 20, the Cal/OSHA Standards Board met to review and vote on proposed revisions to the COVID-19 emergency regulations.  However, that vote was delayed due to a letter request by Cal/OSHA – the agency that published the original emergency regulations and the proposed revisions. The delay was implemented in order to respond to updated CDC guidance which would “allow fully vaccinated persons to go without masks in some settings.”

In its letter, Cal/OSHA noted that beginning on June 15, 2021, the California Department of Public Health (CDPH) “plans to implement the CDC’s guidelines around masking to allow fully vaccinated Californians to go without a mask in most indoor settings.”  Therefore, Cal/OSHA requested a chance to revisit and amend the currently proposed revisions, “in light of this new guidance.” 

The proposed revisions, if enacted in their current form, include some welcome clarifications.  For instance, a workplace is no longer considered to be in an “outbreak” condition if the COVID+ person was only momentarily in the work area and all employees present at the time were wearing masks.  While the current FAQs already addressed how a COVID+ case “momentarily” passing through the workplace will not count towards the three (3) total positive cases within a 14 day period that would qualify as an outbreak (and thus require weekly mandatory testing), the newly proposed revisions remove any doubt as to what “momentarily” means by defining the new term “exposed workgroup,” which includes a specific exception for those COVID+ cases that spend less than 15 minutes at work, again assuming everyone is properly masked up.  This is a great relief for those employers who were in outbreak conditions before, even when a COVID+ case only went to the bathroom or checked in at a common area or kiosk for a brief period of time.

One of the more questionable revisions in the current version of the proposed regulations is that California employers would be required to provide respirators – not just face masks, but actual respirators with a proper seal (such as N95 filtering face pieces) – for all unvaccinated employees.  Yet, under the proposed regulations, the respirators would have to be provided even though unvaccinated employees would not be required to wear them.  How this would actually be effective in the workplace is highly questionable, as some, if not most employees who are not willing to get vaccinated will also likely not be willing to voluntarily wear a respirator.  Yet, the revisions as currently written would still force employers to provide and train on respirator usage for all unvaccinated employees.

In its letter, Cal/OSHA further noted that, “The Division will limit any potential changes to consideration of the recent [CDC] guidance, in order to make possible a targeted effective date of June 15, 2021.”  This signals that any proposed changes to the currently drafted revisions will be minimal and focus on potentially loosening the requirement for employees to wear masks indoors, in accordance with the CDC guidelines.

The Board has indicated that the new draft revisions will be posted by May 28, 2021, and the Board will then vote on the revisions at its June 3, 2021 meeting.  If approved that day, the revisions would be forwarded to the Office of Administrative Law in time to be approved and go into effect by June 15th.  If the revisions are not approved, the current emergency standard will remain in place until its expiration in October 2021, or until a later set of revisions is voted on and approved.  CDF will stay on top of these and other changes.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor in Chief

Sacramento Office Managing Partner and Chair of CDF’s Traditional Labor Law Practice Group. Mark has been practicing labor and employment law in California for thirty years. His practice has a special emphasis on the representation of California employers in union-management relations and handling federal and state court litigation and administrative matters triggered by all types of employment-related disputes. He is also adept at providing creative and practical legal advice to help minimize the risks inherent in employing workers in California. He recently named “Sacramento Lawyer of the Year” in Employment Law-Management for 2021 by Best Lawyers®.
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