On June 3, 2021, the Occupational Safety and Health Standards Board (OSHSB) adopted regulatory amendments to the Emergency Temporary Standards (Cal/OSHA COVID-19 Regulations).[1] These amendments, which are the first since OSHSB promulgated the regulations in November 2020[2], will become effective on June 15 and will require potentially significant revisions to workplace health and safety policies, procedures and practices, including to employer COVID-19 Prevention Programs (CPP)[3].
Note: The OSHSB also formed a subcommittee to work with staff from the Division of Occupational Safety and Health (DOSH) to recommend further amendments to the Cal/OSHA COVID-19 Regulations for consideration at a future OSHSB meeting.
While certain amendments to the Cal/OSHA COVID-19 Regulations are technical in nature or align the regulations with guidance previously provided by Cal/OSHA[4], recommendations by public health authorities[5], or requirements set forth in the Labor Code[6], many of the amendments are new and substantive. The purpose of this special bulletin is to discuss the most significant of the newly adopted amendments in order to facilitate employers’ compliance with the regulation.
The most notable of the amendments relate to distinguishing employees who are “fully vaccinated”[7] from those employees who are not and providing respirators[8] (i.e., N95 masks) to employees and training them on the use of such devices.
In the sections that follow, we discuss these amendments, their impact on employer obligations and how employers may consider responding to the updated regulations. For a comprehensive analysis of the amendments, Liebert Cassidy Whitmore updated its model COVID-19 Prevention Program (CPP) to reflect changes to the Cal/OSHA COVID-19 Regulations and further updated our commentary provided therein to discuss these changes and their implications for employers. Employers will receive information about purchasing the updated model CPP in a separate communication.
Distinguishing Between Employees Who Are “Fully Vaccinated” and Those Who Are Not
Perhaps most importantly, the amendments to the Cal/OSHA COVID-19 Regulations distinguish between employees who are “fully vaccinated” and those who are not on several important subjects.
While the amended regulations do not require that employers distinguish between employees who are “fully vaccinated” and those who are not, the regulations do authorize employers to exempt “fully vaccinated” employees from certain regulatory requirements with which employees who are not “fully vaccinated” must comply. The construction of the regulation implies that employers possess authority to distinguish between vaccinated and unvaccinated employees for the purposes set forth for in the regulations.
Note: Employers should note that distinguishing “fully vaccinated” employees from those who are not fully vaccinated for the purposes provided for under the regulations will require that employers undertake the following steps: (1) request and receive employee vaccination records[9]; (2) obtain written authorization from employees to use their vaccination records for the purposes provided in the Cal/OSHA COVID-19 Regulations[10]; and (3) comply with other obligations related to the confidential nature of such records.[11]
The amended Cal/OSHA COVID-19 Regulations provide employers the discretionary authority to exempt “fully vaccinated” employees from certain regulatory requirements, such as the requirement to wear face coverings “when all persons in a room are fully vaccinated and do not have COVID-19 symptoms”[12] and “when they are outdoors and do not have any COVID-19 symptoms.”[13]
The amended Cal/OSHA COVID-19 Regulations also excuse employers from certain regulatory obligations related to “fully vaccinated” employees. For example, the amended regulations provide that employers do not have to provide COVID-19 testing to “fully vaccinated” employees following a close contact exposure to COVID-19 so long as such employees are asymptomatic[14] and do not have to exclude “fully vaccinated” employees from employer worksites or facilities following such an exposure so long as such employees remain asymptomatic.[15] Furthermore, starting on July 31, 2021, employers must provide “respirators”[16] to “all employees working indoors and at outdoor mega events[17] who are not fully vaccinated.”[18]
Employers should consider whether they will distinguish between employees who are “fully vaccinated” and those who are not for the purposes provided for in the amended Cal/OSHA COVID-19 Regulations. Employers that elect to distinguish between employees for such purposes must comply with the associated legal obligations related to the use of employee vaccination records. Employers that elect not to distinguish between employees must treat all employees as unvaccinated and must comply with the regulatory obligations applicable to employees who are not “fully vaccinated”.
Given the other laws implicated by requests for employee vaccination records and the use of such information, Liebert Cassidy Whitmore recommends discussing pertinent legal requirements with counsel prior to requesting or using employee vaccination records, even for legitimate and non-discriminatory business purposes.
Requirements Related to Respirators
The amendments to the Cal/OSHA COVID-19 Regulations also make a number of important changes regarding the provision of respirators by employers and the use of such devices by employees. Somewhat confusingly, the amended regulations distinguish between respirators “required by the employer”[19] and respirators provided to employees for their “voluntary use”[20] in terms of the obligations for the employer and allowances afforded to the employee.
In terms of employer obligations related to the provision of respirators, the amended regulations provide the following:
The regulatory requirement that employers provide respirators to employees who are not “fully vaccinated” may impose potentially significant costs on employers that permit such employees to return to its worksites and facilities if all such employees request a respirator for their use at work.[23] At the OSHSB meeting, Division of Occupational Safety and Health (DOSH) staff confirmed that employers are obligated to provide respirators to all employees who are not “fully vaccinated” and who want to use a respirators. However, if such employees would prefer to wear a face covering rather than a respirator, the regulations permit the employees to do so.
The amended regulations provide that when the employer provides respirators to employees for their voluntary use, employers must undertake the following steps in order to ensure that such employees know how to use such devices:
The amended regulations also provide that where employers require employees to wear a respirator, employees who use such devices in accordance with applicable requirements[29] will be excepted or exempt from regulatory requirements applicable to other employees, including the following:
While the Cal/OSHA COVID-19 Regulations distinguish between respirators “required by the employer” and those provided to employees for their “voluntary use”, the amended regulations do not prohibit employers from requiring employees who are not “fully vaccinated” wear respirators when reporting to work at an employer worksite or facility. As a result, employers that elect to permit employees who are not “fully vaccinated” to report to employer worksites or facilities may consider adopting a policy that expressly requires that such employees to wear respirators. If an employer requires the use of respirators by employees, including those who are not “fully vaccinated”, the employer must provide training on the proper use of such respirators, including fit-testing and other requirements as part of a written respiratory protection program.[32]
Updated Model COVID-19 Prevention Program (CPP)
As provided above, Liebert Cassidy Whitmore updated its model CPP to reflect the amendments to the Cal/OSHA COVID-19 Regulations. In the model CPP, the firm provides extensive commentary in order to explain the effects of the regulatory amendments and facilitate compliance with such amendments. In addition to the updated and annotated model CPP, Liebert Cassidy Whitmore is making available to those employers that purchase the updated CPP an executive summary describing other important changes to the regulations. Details regarding purchasing the updated CPP will be provided in a separate communication.
Liebert Cassidy Whitmore attorneys are closely monitoring continuing developments at the OSHSB and with the Cal/OSHA COVID-19 Regulations and we will be providing additional updates as necessary.
[1] 8 C.C.R. §§ 3205-3205.4.
[2] On December 14, 2020, Governor Newsom issued Executive Order (EO) N-84-20, suspending the portion of the Cal/OSHA COVID-19 Regulation that required that employers exclude from the workplace employees who had “close contact” exposure to COVID-19 quarantine for four (4) days longer than comparable guidance provided by the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH). (See EO N-84-20; 8 C.C.R. § 3205(c)(10)(B).) Other than the reduction in the requisite quarantine period, there have been no other changes to the Cal/OSHA COVID-19 Regulations since OSHSB promulgated the regulations.
[3] Pursuant to Title 8 Section 3205 of the California Code of Regulations, every employer must adopt and implement a COVID-19 Prevention Program (CPP). (8 C.C.R. § 3205.) Liebert Cassidy Whitmore updated its model CPP and the commentary provided therein to assist employers in complying with the updated Cal/OSHA COVID-19 Regulations. Employers may purchase the updated model CPP and executive summary from Liebert Cassidy Whitmore shortly. Details about purchasing will be sent in a separate email. .
[4] The amended Cal/OSHA COVID-19 Regulations replace the term “exposed workplace” with the term “exposed group” in order to clarify when a group of employees may be exposed to COVID-19. (See 8 C.C.R. § 3205(b)(7).) This amendment aligns with Cal/OSHA guidance concerning obligations under the initial regulations (See Cal/OSHA “COVID-19 Emergency Temporary Standards Frequently Asked Questions”, Outbreaks and the “Exposed Workplace”, Nos. 3, 4, 7, https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html (Last updated May 5, 2021.)
[5] The amended Cal/OSHA COVID-19 Regulations replace the term “COVID-19 exposure” with the term “close contact” in order to align the terminology with that used by the California Department of Public Health (CDPH) and the Centers for Disease Control and Prevention (CDC). (See 8 C.C.R. § 3205(b)(7).)
[6] The amended Cal/OSHA COVID-19 Regulations require that employers provide notice to employees and employee organizations of potential workplace exposures to COVID-19. (See 8 C.C.R. § 3205(c)(3)(B)(3).) This amendment aligns with statutory obligations set forth in Labor Code section 6409.6.
[7] The amended Cal/OSHA COVID-19 Regulations define “fully vaccinated” to mean that “the employer has documentation showing that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccines.” (See 8 C.C.R. § 3205(b)(9); See footnote 9 for additional information about the implications of such definition.)
[8] The amended Cal/OSHA COVID-19 Regulations define “respirator” to mean “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 filtering facepiece respirator.” (8 C.C.R. § 3205(b)(12).)
[9] The regulatory definition of “fully vaccinated” (See 8 C.C.R. § 3205(b)(9); See also footnote 7, supra) will require that the employer possess “documentation” concerning employees’ vaccination status. The Equal Employment Opportunity Commission (EEOC) and the Department of Fair Employment and Housing (DFEH) both provide that Equal Employment Opportunity (EEO) laws do not preclude employers from requesting or requiring such records from employees. (See EEOC “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, K.9., https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term= (Last updated on May 28, 2021); DFEH “Employment Information on COVID-19” (DFEH Guidance), p. 10. Employers that elect to require or request employee vaccination records should consider informing employees that the purpose of the requirement or request for such information is to provide “fully vaccinated” employees the benefits that such vaccination status confers under the Cal/OSHA COVID-19 Regulations.
[10] The Confidentiality of Medical Information Act (CMIA) (Civil Code §§ 56.20-245) governs the use and disclosure of employees’ confidential medical information by employers. The CMIA does not authorize employers’ use of employees’ confidential medical information for the purposes provided in the Cal/OSHA COVID-19 Regulations. (See Civil Code § 56.20(c).) Therefore, in order for employers to use such information for such purposes, employers must obtain employees’ prior written authorization to do so. (See Civil Code § 56.21.) Employers that elect to use employee vaccination records for the purposes provided Cal/OSHA COVID-19 Regulations should consider adding language to a CMIA-compliant authorization that provides that “In addition to the uses and disclosures expressly provided for under and authorized by the CMIA, [Employee] authorizes the [Employer] to use information related to [Employee]’s vaccination status for other legitimate and non-discriminatory business purposes for which information about the employee’s vaccination status is or may be necessary.”
[11] Under the Americans with Disabilities Act (ADA) and the CMIA, employee vaccination records constitute confidential medical information that must be managed and maintained as such. Under the ADA, employers that possess employee medical records are required to keep such records confidential and separate from personnel records. (See 29 C.F.R. §§ 1630.14(b)(1)(i)–(iii), (c)(1)(i)–(iii); 29 C.F.R. pt. 1630 app. § 1630.14(b); See also EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, A.2.; Footnote 19, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 19, 2020).) Under the CMIA, employers must “establish appropriate procedures to ensure the confidentiality and protection from unauthorized use and disclosure of [employees’ confidential medical] information.” (Civil Code § 56.20(a).) The CMIA provides that such “procedures may include, but are not limited to instruction regarding confidentiality of employees and agents handling files containing medical information, and security systems restricting access to files concerning medical information.” (Id.) Employers that elect to require or request employee vaccination records must establish a medical record/information policy and/or procedure that restricts access to employees’ medical information and includes other security measures designed to protect such information, such as requiring the passcodes to access sensitive files, and/or anonymizing or encrypting employees’ information.
[12] 8 C.C.R. § 3205(c)(7)(A)(1).
[13] 8 C.C.R. § 3205(c)(7)(A)(6)
[14] 8 C.C.R. § 3205(c)(3)(B)(5)(a)
[15] 8 C.C.R. § 3205(c)(10)(B)(1).
[16] The amended Cal/OSHA COVID-19 Regulations define “respirator” to mean “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 filtering facepiece respirator.” (8 C.C.R. § 3205(b)(12).)
[17] The amended Cal/OSHA COVID-19 Regulations define “outdoor mega event” to mean “an event that includes over 10,000 participants or spectators outdoors.” (8 C.C.R. § 3205(b)(11).)
[18] 8 C.C.R. § 3205(c)(8)(E)(2).
[19] See 8 C.C.R. §§ 3205(b)(1); (c)(6)(A); (c)(7)(A)(3).
[20] See 8 C.C.R. § 3205(c)(5)(E)(1),(2); (c)(6)(B); (c)(8)(E)(1),(2),(5).
[21] 8 C.C.R. § 3205(c)(6)(B).
[22] 8 C.C.R. § 3205(c)(8)(E)(2).
[23] Employers should note that the EEOC provides that, under the ADA, employers may adopt and implement a safety-based qualification standard to ensure the health and safety of individuals in the workplace by prohibiting individuals, including potentially unvaccinated employees, who would pose a direct threat to the workplace due to a “significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” (See EEOC “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, K.5. citing 28 C.F.R. § 1630.2(r), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term= (Last updated on May 28, 2021.)
[24] 8 C.C.R. § 3205(c)(5)(E)(1).
[25] 8 C.C.R. § 3205(c)(5)(E)(2).
[26] 8 C.C.R. § 3205(c)(8)(E)(1).
[27] 8 C.C.R. § 3205(c)(8)(E)(1).
[28] 8 C.C.R. § 3205(c)(8)(E)(5). This requirement becomes effective 15 days after the effective date of the regulations, or June 30, 2021.
[29] Title 8, Section 5144 of the California Code of Regulations provides for respiratory protection requirements. That regulatory section is available at the following web address: https://www.dir.ca.gov/title8/5144.html
[30] 8 C.C.R. § 3205(c)(10)(B). Such employees are excepted from the regulatory definition of “close contact” (See 8 C.C.R. § 3205(b)(1).)
[31] 8 C.C.R. § 3205(c)(6)(A).
[32] See 8 C.C.R. § 5144(c)(1).
This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.