New COVID-19 Workplace Regulations
Q: What are the important changes in the June 11th proposed revised ETS?
- Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
- No face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers should be trained on CDPH recommendations for outdoor use of face coverings.
- Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status. There are some settings where CDPH requires face coverings regardless of vaccination status. In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
- Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request.
- Employers may not retaliate against employees from wearing face coverings.
- No physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
- Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
- Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
- No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
- Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations
- Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems
Q. Are there requirements from the November 2020 ETS that will remain in place?
A: Yes, including:
- An effective written COVID-19 Prevention Program.
- Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
- Providing notification to public health departments of outbreaks.
- Providing notification to employees of exposure and close contacts.
- Requirements to offer testing after potential exposures.
- Requirements for responding to COVID-19 cases and outbreaks.
- Quarantine and exclusion pay requirements.
- Basic prevention requirements for employer-provided housing and transportation.
Q: Are all physical distancing requirements in the proposed revised ETS gone?
A: The proposed revised ETS is similar to rule changes for the general public in California that eliminate physical distancing and barrier requirements regardless of vaccination status. There are several exceptions that may apply:
- Nothing in the proposed revised ETS prevents employers from implementing additional protective measures than are required, including the use of physical distancing and barriers.
- Employers are under an ongoing requirement to assess workplace hazards and implement controls to prevent transmission of disease. There may be circumstances in which employers determine that physical distancing is necessary in their workplace.
- During an outbreak (3 or more employees in an exposed group), employers are required to evaluate whether physical distancing or barriers are necessary to control the transmission of COVID-19.
- Physical distancing and barriers must be used in a major outbreak (20 or more employees in an exposed group) for all employees, regardless of vaccination status.
Q: Who has to wear face coverings?
A: Face coverings are required indoors and in vehicles for unvaccinated employees. Employees in certain indoor settings must wear a face covering regardless of vaccination status if required by CDPH order. As of June 15, those indoor settings where CDPH requires face coverings include public transit, K-12 educational facilities, health care and long-term care settings, correctional and detention facilities, and shelters (homeless or emergency shelters and cooling centers).
Though face coverings are not required outdoors, employers must communicate to workers that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained. Employers must provide face coverings to unvaccinated persons and make them available to vaccinated persons upon request.
Q: Are there exceptions to wearing face coverings indoors?
A: Yes. The most common exceptions for unvaccinated persons are:
- When alone in a room or vehicle
- When eating and drinking
- When an accommodation is required
- When job duties make a face covering infeasible or create a hazard
Q: Are workers protected from retaliation if they choose to wear a face covering, even if not required to do so?
A: Yes. Employers cannot retaliate against workers for wearing face coverings, including when the worker is wearing a face covering voluntarily.
Q: Is documentation required for a fully vaccinated employee to work without a face covering indoors?
A: Yes. Vaccination status must be documented. The proposed revised ETS does not specify a particular method. The employer must record the vaccination status for any employee not wearing a face covering indoors and this record 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 proposed revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.
Q. What if the employee declines to state their vaccination status?
A: Under the ETS, an employer is not obligated to require employees to submit proof of being fully vaccinated. Absent such a requirement, an employee has the right to decline to state if they are vaccinated or not. In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.
Original article by Robert E. Nuddleman
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