On May 20, 2021, the Cal/OSHA Standards Board  (“Board”) delayed a vote on proposed changes to the COVID-19 Emergency Temporary Standards (“ETS”). At that time, the Board claimed they would revise the ETS to address updated guidance from the Centers for Disease Control and Prevention (“CDC”) for fully vaccinated persons. However, the revised ETS passed by the Board late on June 3rd falls short of following all of the CDC’s newest guidance and takes a more restrictive approach than previously proposed revisions.

The amended ETS will be submitted to the Office of Administrative Law (“OAL”) and the OAL has 10 calendar days to approve, just in time for the reopening of California on June 15th. It is assumed the ETS will be approved by the OAL.

Here are the changes to the ETS that California employers should be aware of:

  • Physical distancing: The 6 feet physical distancing requirements will remain in place until July 31, 2021. However, the amended ETS adds the following exceptions to physical distancing:
    • An employee wearing a respirator if required by the employer and used in compliance with the Respiratory Protection Standard in Cal. Code. Regs., tit. 8, section 5144.
    • Locations at which all employees are fully vaccinated, except for employees who require a reasonable accommodation or exception to vaccination under federal or state law.
  • Face coverings: Employers are still required to provide face coverings and ensure face coverings are worn when indoors, when outdoors and less than 6 feet away from others, and where required by orders from the California Department of Public Health or local orders. However, the following exceptions apply:
    • When an employee is either alone in a room or when all persons in a room are fully vaccinated.
    • Employees who wear respirators as required by other sections.
    • Employees who are fully vaccinated when they are outdoors and do not have any COVID-19 symptoms.

Employers looking to take advantage of the exceptions for social distancing and face coverings will also have to have effective documentation showing affected employees are fully vaccinated as required by the ETS. This will create some additional compliance obligations with respect to medical records and the protection of employees’ private and confidential information.

  • Respirators for unvaccinated employees: Effective July 31, 2021, employers must provide filtering facepiece respirators (i.e., NIOSH-approved devices that are able to filter particulate matter, such as the N95s) to employees that are not vaccinated for voluntary use

 Employers should note that respirators are different from face coverings, in that respirators provide personal protection to the individual wearing the respirator. Face coverings, in contrast, are meant to provide source control.  As a result of this requirement, employers will also need to comply with Title 8, Section 5144(c)(2), which has specific requirements for voluntary respirator use, such as providing certain information to users contained in Appendix D of Section 5144. Employers must similarly develop written procedures for employees to use respirators in the workplace that ensure employees’ use of respirators does not pose a hazard and that respirators are used in a correct manner.

  • Partitions: Partitions must continue to be used until July 31, 2021, to protect employees working indoors and at outdoor mega-events. One exception to this is to provide respirators for voluntary use in compliance with Section 5144(c)(2). After July 31, 2021, employers could remove partitions but would be required to reinstall them in the case of multiple COVID-19 infections or outbreaks in the workplace.
  • Exclusion: Fully vaccinated employees that test positive for COVID-19 (or are otherwise considered a COVID-19 case) must still be excluded from the workplace until the return to work requirements (same as the prior ETS) are met. However, fully vaccinated employees no longer need to be excluded from the workplace due to a close contact, so long as they do not develop symptoms.
  • Testing: Employers must continue to make COVID-19 testing available at no cost during paid time to all employees who have had a close contact except for those who are fully vaccinated before the close contact or certain individuals who have recovered from COVID-19.

California employers will need to carefully consider these new standards in developing their plans as the state moves toward reopening on June 15th.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

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Photo of Sean Paisan Sean Paisan

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations…

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations, and fighting citations. Additionally, Sean also assists employers in data privacy and traditional employment matters, including litigation and counseling.

Sean’s first exposure to OSHA regulations occurred during his undergraduate studies while working for a construction company that helped build Disney’s California Adventure. After attending law school and working for the Los Angeles County District Attorney’s Office and the United States Attorney’s Office, Sean moved into private practice, where he focused on general liability matters, including serious injuries and fatalities. Through this experience, Sean became very knowledgeable on the myriad of Cal/OSHA regulations imposed on businesses, especially in the construction, manufacturing, and healthcare industries, and the consequences for violations of those regulations. From there, Sean became OSHA 30 certified and began assisting employers with all workplace safety matters, from compliance, to investigations and inspections, to the appeals of citations in California, Arizona, Washington, and Hawaii.

Throughout his career, Sean has been called upon to try cases that cannot be settled. He has handled trials in the United States District Court, California Superior Court, Cal/OSHA Appeals Board, Workers Compensation Appeals Board, and the US Department of Labor OALJ, as well as binding arbitrations. Sean has tried cases involving the following subjects: general employment, wrongful death, premises liability, unfair competition (B&P § 17200), false advertising (Lanham Act), misappropriation of trade secret, restrictive covenants, and whistleblower (AIR21).

In addition to his trial experience, he is routinely called on to assist his clients with workplace crises such as catastrophic injuries, fatalities, data breaches, and ransomware incidents. Drawing on his years of in both civil and criminal law, Sean’s unique background allows him to anticipate and proactively manage issues, rather than simply reacting to requests and inquiries by investigating agencies such as law enforcement, OSHA, Cal/OSHA, California Bureau of Investigations (BOI), Federal Aviation Administration (FAA), National Transportation Safety Board (NTSB), as well as opposing counsel in litigation matters.

In addition to his litigation experience, Sean has earned the CIPP/US credential through the International Association of Privacy Professionals (IAPP). He helps organizations manage rapidly evolving privacy threats and mitigate the potential loss and misuse of information assets. He has an in-depth understanding of how privacy laws can impact business operations. These laws include the Health Insurance Portability and Accountability Act (HIPAA), Federal Trade Commission Act (FTC Act), Health Information Technology for Economic and Clinical Health Act (HITECH), Genetic Information Nondiscrimination Act (GINA), Fair Credit Reporting Act (FCRA), Gramm-Leach-Bliley Act (GLBA), Fair and Accurate Credit Transaction Act (FACTA), Dodd-Frank Wall Street Reform and Consumer Protection Act, California Financial Information Privacy Act, Family Educational Rights and Privacy Act (FERPA), Telemarketing Sales Rule, Telephone Consumer Protection Act (TCPA), Junk Fax Prevention Act, Controlling Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), Cable Communications Policy Act, Video Privacy Protection Act, Children’s Online Privacy Protection Act (COPPA), California Online Privacy Protection Act (CalOPPA), California Consumer Privacy Act (CCPA), and California Privacy Rights Act (CPRA). With respect to laws affecting the ability of the government to obtain information, Sean can assist employers in understanding their obligations under the Federal Wiretap Act, Electronic Communications Privacy Act (ECPA), Communications Assistance for Law Enforcement Act (CALEA), Right to Financial Privacy Act, Privacy Protection Act, Foreign Intelligence Surveillance Act (FISA), and USA PATRIOT Act.

Before becoming an attorney, Sean earned his bachelor’s degree in accounting from the University of Southern California, where he also played varsity ice hockey in the ACHA. When not practicing law, Sean enjoys spending time with his wife and three young children, playing adult league ice hockey, mountain biking, and motorsports.