Cal/OSHA held a special meeting on June 9 to discuss potential revisions to the COVID-19 Emergency Temporary Standard adopted on June 3, in light of California Department of Public Health mask guidance issued on June 9. The Cal/OSHA Board voted to withdraw the revisions to the COVID-19 regulations adopted on June 3. Cal/OSHA staff will bring another proposal to the Board on June 17.

The June 17 proposal is expected to modify the Regulations adopted last week to align with the new CDPH guidance. Most notably, the CDH guidance states masks are not required for unvaccinated individuals in most circumstances, including indoors unless in specific facilities. Unvaccinated individuals are still required to wear masks “in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public).” Based on discussion at the Cal/OSHA meeting, the June 17 amendments to the Regulations are expected to focus solely on updating face covering requirements, not other requirements from the Regulations adopted last week like physical distancing.

The Regulations in effect before June 3 remain in effect until Cal/OSHA adopts a new version.

After a marathon 10-hour meeting on June 3, the California Division of Occupational Safety and Health (“Cal/OSHA”) Occupational Safety & Health Standards Board has approved revisions to its COVID-19 Emergency Temporary Standards. (8 C.C.R., §§ 3205 et seq.)

Most notably, all employees must still wear face coverings when indoors or when outdoors and less than six feet from another person, regardless of vaccination status. There are only limited circumstances when employees are not required to wear face coverings, including new exceptions for vaccinated employees either: (1) when all persons in a room are fully vaccinated and not displaying COVID-19 symptoms; or (2) when a vaccinated employee is outdoors and does not have COVID-19 symptoms. This is more stringent than the Centers for Disease Control and Prevention’s guidance on masks for vaccinated individuals, which recommends allowing fully vaccinated individuals to resume most activities without wearing masks or physically distancing. The regulations also tighten the definition of face covering to expressly exclude “scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.”

In addition, Cal/OSHA’s regulations require employers to comply with one of the two following provisions until July 31, 2021:

1. All employees working indoors or at outdoor mega events must be separated from other individuals by at least six feet, regardless of vaccination status, unless:
   1. The employee is wearing a respirator required by his or her employer pursuant to a respirator protection program;
   2. The employer can demonstrate six feet of separation is not feasible, and the employees are kept as far apart as possible; or
   3. There is only momentary exposure while persons are in movement.
2. All employees who are not fully vaccinated are provided respirators for voluntary use in compliance with requirements of a respiratory protection program under 8 C.C.R. section 5144(c)(2).

In other words, employers can either continue to require physical distancing or instead implement voluntary respirator use for unvaccinated employees. As of July 31, 2021, employers must offer respirators to all unvaccinated employees who are working indoors or outdoors at mega events and is no longer required to enforce physical distancing. Employees’ use of respirators, as opposed to regular face coverings, is voluntary. Respirators include any 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.” The respirators must be provided consistent with 8 C.C.R. section 5144(c)(2) which requires, among other components, the City determine use will not create a hazard for its employees.

We do not expect this current iteration of the regulations to last long. At its June 3 meeting, the Occupational Safety & Health Standards Board initially rejected the proposed revisions, then accepted them only after first agreeing to form a subcommittee to promptly review potential amendments. The Board expressed intent to bring back additional regulations in July. We will keep you up-to-date as those potential changes become available!