Do you have offices or employees in California? What is your plan for complying with the CAL/OSHA COVID-19 ETS?

CALIFORNIA’sCOVID-19 Prevention Emergency Temporary Standards started January 14th, 2022.

California recently approved Cal/OSHA emergency temporary standards on COVID-19 infection prevention. These new temporary standards apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.

CALIFORNIA’s COVID-19 Prevention Emergency Temporary Standards started January 14th, 2022.

The revisions are effective starting on January 14, 2022. In addition to these requirements, employers must follow public health orders on COVID-19. The latest order from the California Department of Public Health on January 5, 2022 requires the use of face coverings by all employees when indoors.

1. Q: Which employers must comply with the Cal/OSHA COVID-19 emergency temporary standards (ETS)?

A: The ETS applies to all employers, employees, and to all places of employment with the following exceptions:
- Work locations where there is only one employee who does not have contact with other people.
- Employees who are working from home.
- Employees who are covered by the Aerosol Transmissible Diseases regulation.
- Employees working from a location chosen by the employee, which is not under the control of the employer (for instance, an employee teleworking from a café or a friend’s home).
2. Q: Does the Cal/OSHA ETS apply for employees who split their work time between home and the workplace?

A: Yes, however, the regulation applies only when employees work at the workplace, or are exposed at work, but not when they work from home.
3. Q: Does the regulation apply to workplaces with only one employee in California who has brief contact with other persons?

A: Yes, the regulation applies to such workplaces (unless they fall into one of the exceptions listed above); however, the measures that the employer must implement to comply with the ETS will reflect this type of limited exposure.
4. Q: Does the regulation apply for employees who are working from remote locations other than their home?

A: No, the regulations do not apply to employees an employer assigns to telework but who choose to work elsewhere, such as at a hotel or rental property. The regulation on employer-provided housing (3205.3) applies when a person is working from a hotel arranged for or provided by the employer; however, the rule does not apply to business travel by employees unless they are sharing a room or suite.
5. Q: Does the CAL/OSHA regulation apply to any facility that is subject to the Aerosol Transmissible Diseases (ATD) standard?

A: The ETS applies to employees at these facilities who are not identified in the employer’s Aerosol Transmissible Diseases Exposure Control Plan, as required under California’s Aerosol Transmissible Diseases (ATD) standard (8 CCR section 5199), as having occupational exposure to aerosol transmissible diseases, such as administrative employees who work only in an office environment separated from patient care facilities.
6. Q: The regulation exempts employees with occupational exposure as defined by section 5199, when covered by that section. Can an employee in a single workplace be subject to both the ETS and section 5199 at different times?

A: No. In a facility or operation that is within the scope of section 5199, employees with occupational exposure to aerosol transmissible diseases (ATDs), as defined in section 5199, are covered by the requirements of section 5199, and not the ETS. This is true even when an employee who has occupational exposure performs tasks that do not include exposure to ATDs, e.g., when a hospital nurse who performs patient care spends time in the hospital’s human resources office.
7. Q: Can an employer at a workplace covered by section 5199 deem all employees on site to have occupational exposure to COVID-19 and exempt them from the ETS?

A: If the employer provides all employees with protections under its ATD Exposure Control Plan and has incorporated those employees into the plan in accordance with section 5199 because they have an occupational exposure to COVID-19, then those employees would not be subject to the ETS.
8. Q: The regulation exempts employees with occupational exposure as defined by section 5199, when covered by that section. Can a firefighter be subject to both the ETS and section 5199 at different times?

A: No, a firefighter cannot be subject to both the ETS and section 5199. However, a firefighter must be protected from COVID-19 under one of the standards.

If the firefighter performs emergency medical services (EMS) duties, such as those of a paramedic, emergency medical technician or first responder; or if the firefighter otherwise provides support in the field to those performing EMS duties, the firefighter has occupational exposure to aerosol transmissible diseases (ATDs), as defined in section 5199, and is covered by the requirements of section 5199, and not the ETS. This is true even when that firefighter performs tasks that do not necessarily involve potential exposure to ATDs, e.g., when responding to non-EMS calls and when otherwise traveling in fire department vehicles; when performing routine tasks, such as training and maintenance; and while engaged in the normal routines of a fire station, including meals and sleeping.

Section 5199(e) requires employers to use feasible engineering and work practice controls to minimize employee exposures to aerosol transmissible pathogens. This includes implementing COVID-19 protections in fire department vehicles and facilities, such as by improving ventilation, physical distancing and mask use in accordance with CDPH requirements, including in facility sleeping quarters and other common areas.

Under Section 5199(h)(6)-(9), covered employers must implement specific follow-up requirements in the event an employee is exposed to an aerosol transmissible pathogen. This includes fire departments when firefighters are potentially exposed to COVID-19, regardless of the source of the exposure. If a firefighter is not identified as having occupational exposures to ATDs in the employer’s ATD Prevention Plan or if a firefighter is not protected under that plan, the firefighter would be subject to the ETS.

What is required under the CAL/OSHA COVID-19 Prevention Program

Q: What are the main requirements of the ETS?

A: To comply with the ETS, an employer must develop a written COVID-19 Prevention Program or ensure its elements are included in an existing Injury and Illness Prevention Program (IIPP). The employer must do the following in accordance with their written program:

Communicate to employees about the employer’s COVID-19 prevention procedures.
Identify, evaluate and correct COVID-19 hazards
Require and provide face coverings and respirators in the manner and in the circumstances specified in the ETS.
Advise employees they can wear face coverings at work, regardless of their vaccination status, without fear of retaliation by the employer.
Use engineering controls, administrative controls and personal protective equipment under certain circumstances.
Follow procedures to investigate and respond to COVID-19 cases in the workplace.
Provide COVID-19 training to employees.
Make testing available at no cost to employees who have had a “close contact” (as defined in the ETS) with a person with COVID-19, and in the case of multiple infections or a major outbreak, make testing available at no cost on a regular basis for employees in the exposed work areas. This requirement does not apply to exposed employees who are fully vaccinated and have no symptoms, except during major outbreaks.
Exclude COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk. Exposed employees who are fully vaccinated and have no symptoms do not need to be excluded.
Follow return to work criteria.
Maintain records of COVID-19 cases, and report serious illnesses to Cal/OSHA and to the local health department when required.

Cal/OSHA has posted a Model COVID-19 Prevention Program on its website for employers to use.

What do I need to Communicate with Employees?

Q: What does the ETS require employers to communicate to employees?

A: Requirements include:

How to report COVID-19 symptoms, possible close contacts and hazards to the employer without fear of reprisal.
COVID-19 hazards in the workplace and the employer’s policies and procedures to address them.
Best practices for preventing the transmission of COVID-19, including information on respirators.
When and how unvaccinated persons can request a respirator.
That employees may wear face coverings at work, regardless of their vaccination status, without fear of retaliation by their employer.
How employees with elevated risk factors for COVID-19, which can be found on the CDC’s website, can request accommodations from their employer.
How the employee can obtain testing for COVID-19, such as through the employer’s workplace-based testing program, or through the local health department, a health plan, or at a community testing center.
Notice of potential exposure to COVID-19.
How to participate in workplace hazard identification and evaluation.
Information regarding COVID-related benefits to which the employee may be entitled under federal, state or local laws.

Identifying, Evaluating and Correcting COVID-19 Hazards

1. Q: What must an employer do to identify, evaluate and correct workplace hazards?

A: Identifying, evaluating and correcting workplace hazards includes:

Developing and implementing a process for screening employees for and responding to employees with COVID-19 symptoms.
Reviewing existing state and local guidance and orders on hazard prevention, including industry-specific guidance found on Cal/OSHA’s website.
Reviewing existing practices for controlling COVID-19.
Conducting a site-specific evaluation of where COVID-19 transmission could occur, including interactions between employees and any other persons, and places employees may congregate or interact with members of the public.
Allowing employees or employees’ authorized representatives to participate in hazard identification and evaluation.
Ensuring a process is in place to immediately address COVID-19 cases.
Conducting periodic inspections of the workplace to ensure compliance with the ETS and check for new hazards.
Implementing procedures to correct identified hazards.

2. Q: How does an employer allow employees or employees’ representatives to participate in hazard identification or evaluation?

A: The employer has flexibility in how it allows worker participation in hazard identification and evaluation. The rule does not explicitly require employee participation, but employers must allow it. Cal/OSHA encourages the participation of employees and employees’ authorized representatives in hazard identification and evaluation. Employers must train employees on how to participate.

Does the Cal/OSHA ETS Require Face Coverings and Other Controls?

Q: What are the face covering requirements of the ETS?

A: The ETS requires employers to provide employees who are not fully vaccinated with face coverings of at least 2 layers or more and ensure they are worn over the nose and mouth when indoors, in vehicles and when required by orders from the CDPH. Outdoors, no employees need to use face coverings, regardless of vaccination status, unless there is an outbreak.

Exceptions include: when an employee is alone in a room or vehicle, while eating or drinking provided employees are six feet apart or outside, employees wearing respirators, employees who cannot wear face coverings due to a medical or mental health condition or disability or who are hearing-impaired or communicating with a hearing-impaired person, or when an employee performs specific tasks which cannot be performed with a face covering. Employers must also provide face coverings to employees upon request, regardless of their vaccination status.

1. Q: What if an employee is not required to wear a face covering under the ETS, but wishes to do so?

A: Employers must allow employees to wear face coverings if they voluntarily choose to do so, unless it would create a safety hazard, such as interfering with the safe operation of equipment.
2. Q: May an employer require an employee to wear a face covering at work even if the employee provides documentation verifying that they are fully vaccinated?

A: Yes, employers can have policies that are stricter than those required by the ETS. However, an accommodation must be made for those who cannot wear face coverings due to a medical or mental health condition or disability, who are hearing-impaired or communicating with a hearing-impaired person, or when an employee performs specific tasks which cannot be performed with a face covering.
3. Q: What engineering controls, administrative controls, and personal protective equipment must an employer implement?

A: Requirements include:
- o Engineering controls
  - Maximize the amount of outside air to the extent feasible, unless there is poor outside air quality (an AQI of 100 or higher for any pollutant) or some other hazard to employees such as excessive heat or cold
- o Administrative controls
  - Implement effective cleaning procedures of commonly touched surfaces, such as doorknobs, elevator buttons, equipment, tools, handrails, handles, controls, phones, headsets, bathroom surfaces, and steering wheels
  - Clean areas and material where a COVID-19 case has been during the “high risk exposure period,” as defined in these FAQs, and disinfect if indoors and used by another employee within 24 hours
  - Provide for, encourage and allow time for frequent hand washing, and provide hand sanitizer
- o Personal protective equipment (PPE)
  - Evaluate the need for PPE, including but not limited to gloves, eye protection and respiratory protection as required by Cal/OSHA standards
  - Upon request, provide respirators for voluntary use to all employees who are not fully vaccinated and who are working indoors or in vehicles with more than one person (“respirator” means a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 mask)
  - When respirators are provided for voluntary use, encourage their use and ensure the respirator is the correct size for the employee
  - Provide eye and respiratory protection for employees exposed to procedures that aerosolize saliva or other potentially infectious materials, such as some dental procedures.
4. Q: What impact does CDPH’s Guidance for the Use of Masks, revised as of December 13, 2021, have on the COVID-19 Prevention Emergency Temporary Standards (ETS)?

A: Cal/OSHA’s face covering requirements are detailed in the ETS. The ETS requires that employers “provide face coverings and ensure they are worn by employees when required by orders” of the California Department of Public Health (CDPH). (8 CCR § 3205(c)(6)(B).) The December 13, 2021 CDPH guidance is such an order.

Ventilation

1. Q: What should be done about building ventilation?

A: If a building or structure has natural or mechanical ventilation, or both, the employer should maximize as much as possible the quantity of outside air provided, except when the United States Environmental Protection Agency (EPA) Air Quality Index is greater than 100 for any pollutant or if opening windows or maximizing outdoor air by other means would cause a hazard to employees, for instance from excessive heat or cold.

2. Q: How can employers who rent buildings or workspace in buildings over which they do not have control comply with the requirements regarding maximizing outdoor air?

A: Employers in these circumstances should request that the building operator assist with compliance with the emergency regulation. It should be noted that if the building operator has employees that work on the premises, it is also subject to the rule.

3. Q: What if an employer has processes that prevent the use of outdoor air?

A: The ETS requires, with some exceptions, the employer to maximize the use of outdoor air to the extent feasible. Cal/OSHA will consider the processes or environments necessary to perform the work when assessing feasibility. The employer should filter recirculated air with the highest filtration efficiency compatible with the ventilation system.

Vaccines

1. Q: When is an employee considered vaccinated under the ETS?

A: An employee is considered fully vaccinated if the employer has documented that the employee received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine.

2. Q: What COVID-19 vaccines are acceptable under the ETS?

A: Vaccines must be FDA approved; have an emergency use authorization from the FDA; or, for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO).

3. Q: Must the ETS still be followed for vaccinated persons?

A: Yes, some of the requirements of the ETS must still be followed by vaccinated employees, as discussed in the Face Covering, Testing, and Outbreak sections of this FAQ.

4. Q: May an employer require employees to submit proof of their being “fully vaccinated”?

A: : Yes. As explained by the Department of Fair Employment and Housing, https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf because the reasons that any given employee or applicant is not vaccinated may or may not be related to disability or religious creed, simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination, employers may wish to instruct their employees or applicants to omit any medical information from such documentation. Any record of employee or applicant vaccination must be maintained as a confidential medical record. Under the ETS, an employer is not obligated to require employees to submit proof of being fully vaccinated.

5. Q: May an employer require employees to be vaccinated against COVID-19?

A: This is an issue outside the scope of the ETS. For guidance, employers may wish to refer to information provided by the federal Equal Employment Opportunity Commission (EEOC) and/or the California Department of Fair Employment and Housing at the following webpages.

6. Q: What is the employer required to do if it does not want to ask employees whether they are vaccinated?

A: If the employer does not wish to ask about and document the vaccination status of their employees, the employer must treat all employees as unvaccinated.

7. Q: After asking about an employees’ vaccination status, how can an employer document that an employee is “fully vaccinated”?

A: An employer is not compelled to use any specific method of documenting their employees’ vaccination status, though whichever method is used, the information must be kept confidential. Acceptable options include:

Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
Employees self-attest to vaccination status and employer maintains a record of who self-attests.

Nothing in the ETS prevents an employer from treating all employees as unvaccinated and taking the most protective steps under the ETS (such as requiring all employees to wear a face covering) instead of having a documentation process.

8. Q: How long are employers required to maintain documentation of employee vaccination status?

A: Vaccination records created by the employer under the ETS need to be maintained for the length of time necessary to establish compliance with the regulation, including during any Cal/OSHA investigation or appeal of a citation.
In order to encourage documentation using vaccination records, Cal/OSHA has determined that it would not effectuate the purposes of the Labor Code to subject such records to the thirty (30) year record retention requirements that apply to some medical records.

9. Q: If federal OSHA adopts a standard obligating employers with 100 or more employees to require COVID-19 vaccines or weekly testing, what will happen in California?

A: California maintains an occupational safety and health plan that is approved and monitored by federal OSHA. As a “state plan state,” California is required to adopt occupational safety and health standards “at least as effective” as federal OSHA’s, in accordance with Section 18 of the federal Occupational Safety and Health Act of 1970 (29 USC § 667(c)(2)).

If federal OSHA adopts a standard obligating employers with 100 or more employees to require either vaccines or weekly testing for employees, the State will have 30 days after the date of promulgation of the federal standard to adopt a comparable standard.