Important Changes Employers Need To Be Aware Of: Updated Guidance on the California Mask Mandate and Significant Revisions to Cal/OSHA ETS Approved

Client Alert

December 2021

Updated Guidance on CDPH Mask Mandate

As discussed in our prior alert, the CDPH released guidance requiring face masks to be worn in all indoor public settings, regardless of vaccination status, from December 15, 2021 through January 15, 2022. Late Wednesday afternoon, the CDPH issued guidance clarifying that the mask requirement applies to all workplaces, regardless of whether or not they serve the public, or are open to the public. In addition to the exceptions listed in the guidance and discussed in our prior alert, all employers must require employees to wear masks indoors, 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).

However, accommodations 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, and when an employee performs specific tasks which cannot be performed with a face covering.

This guidance clarifies that the mask requirement should be interpreted more liberally to include nearly all indoor settings.

Significant Revisions to Cal/OSHA ETS Approved and Further Guidance on the California Mask Mandate

On December 16th important revisions of the COVID-19 Emergency Temporary Standard (ETS) were adopted to take effect on January 14, 2022. These changes will be in effect for at least 90 days and may be later readopted or amended. Most significantly under the updated ETS, fully vaccinated workers may still have to be excluded from the workplace after a close contact. A summary of the changes follows with the most significant changes appearing first. Employers should look to update their COVID-19 protocols to ensure they maintain compliance before the revisions become effective on January 14. (These changes to the ETS were approved by the Occupational Safety and Health Standards Board of California’s Division of Occupational Safety and Health (Cal/OSHA).)

Updated Exclusion Requirements. The revised ETS states that fully vaccinated employees must still be excluded after a close contact unless they wear an approved face covering and maintain social distancing for 14 days following the exposure. As a reminder, close contact means being within 6 feet of a COVID-19 case for a cumulative 15 minutes over a 24 hour period. If an employee cannot meet the face covering and social distancing requirements they must be excluded as an unvaccinated employee would: for up to 14 days since the date of the last known close contact. These same requirements apply to naturally immune employees, i.e., those that had COVID-19 and have returned to work and remained symptom free for 90 days after the initial onset of COVID-19. If the employee is able to wear a mask and practice social distancing, the employer must also provide them with information regarding precautions recommended by the California Department of Public Heath (CDPH). It remains to be seen how this new requirement will interact with the CDPH mask mandate for indoor public spaces which is discussed below. The Cal/OSHA Standards Board indicated that further FAQs are forthcoming and we expect that they will attempt to clear up this uncertainty.

While the requirement to maintain an employee’s earnings while excluded has not changed in the revised ETS, it is worth a reminder that if an employee is excluded due to a workplace exposure and is not receiving disability or workers’ compensation payments, then the employer will have to continue to maintain that employee’s earnings while they are excluded. This makes it all the more important to ensure that fully vaccinated employees can wear a mask and practice social distancing so they can continue to work and not have to be excluded after a close contact.

In addition to the changes for fully vaccinated employees, if any employee is excluded from the workplace due to a close contact and they remain asymptomatic they should not return to work for 14 days since the last close contact. This is an increase from the previous requirement of 10 days. An exception to this 14 day requirement is employees who have come in close contact and remain asymptomatic can return prior to 14 days if (1) ten days have passed and they wear a face covering and maintain social distancing for the following 4 days, or (2) seven days have passed since the last close contact and the employee tests negative after taking a test at least five days after the close contact and that person wears a face covering and practices social distancing for the following seven days. If a close contact develops symptoms they will be required to wait an additional 10 days after the onset of symptoms and until they no longer have a fever of over 100.4 and their symptoms have improved before returning to work. Symptomatic employees are not permitted to take a test and return to work earlier.

Additionally, the revised ETS removes the return to work after testing exception for healthcare providers who are experiencing a critical staffing shortage.

Testing for Fully Vaccinated Employees. The revised ETS requires that testing be provided to all employees who had a close contact regardless of vaccination status. The previous guidance exempted fully vaccinated employees from this requirement. However, naturally immune employees (defined above) do not need to be provided with testing after a close contact. Additionally, when an outbreak occurs all employees in the exposed group, regardless of vaccination status, will also have to be tested at the employer’s expense. This makes it even more imperative that employers have an efficient and cost-effective testing procedure in place as the scope of who must be tested has increased significantly and employers are still required to pay for the cost of the testing and the time required to be tested.

Updated Face Covering Definition. If a cloth face covering is used, the revised ETS requires cloth face coverings that “do not let light pass through when held up to a light source.” The ETS does not state what light source to use or how much light can pass through to disqualify the face covering. During the public comment session of the Cal/OSHA Standards Board meeting, several commenters took issue with the vagueness of this requirement. We expect the upcoming FAQs to address this requirement as well. Further, neck gaiter style face coverings may be used but they must have two layers of fabric or be folded to make two layers. All face coverings must be “a solid piece of material without slits, visible holes, or punctures, and must fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face.” The revised ETS also makes it clear that face covering with a clear plastic panel that otherwise meet the requirements are permissible if used to communicate with people who are deaf or hard-of-hearing or others who need to see a speaker’s mouth or facial expressions to understand speech or sign language.

Updated Definition of Fully Vaccinated. To be considered fully vaccinated under the revised ETS, the employer must have documented the employee’s status two weeks after completing primary vaccination (booster shot not required) with at least the minimum recommended interval between shots if receiving a two shot vaccine. The CDC currently recommends three weeks between doses of the Pfizer vaccine and four weeks between doses of the Moderna vaccine. The vaccine must be approved or authorized for emergency use by the FDA, listed for emergency use by the World Health Organization, or administered as party of a clinical trial at a U.S. site and the individual did not receive a placebo dose. Employees can received a combination of different vaccines, i.e., one shot of Moderna and one of Pfizer and still be considered fully vaccinated.

New Requirements for Approved Testing. Tests under the revised ETS must still be authorized by the FDA and administered in accordance with instructions. The ETS was revised to require that the test cannot be both self-administered and self-read unless observed by the employer or authorized telehealth proctor. The ETS provides the following examples of permissible tests: “tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.”

Updated Definition of Worksite. The definition of worksite now excludes “locations where the worker worked by themselves without exposure to other employees, or to a worker's personal residence or alternative work location chosen by the worker when working remotely.” This definition is important in determining who receives notice of a COVID-19 case discussed below and makes clear that employees working remotely or alone are not required to receive the notice.

Revised Notice Requirements. The revised ETS still requires that employers provided notice of a COVID-19 case within one business day to all employees present at the worksite. The revisions clarify that the notice must be in the manner the employer normally uses to communicate similar information to employees and that the notice must go out to all employees present at the same worksite as the COVID-19 case. This notice must also be provided to independent contractors and the authorized representative of the COVID-19 case, and the authorized representative of any employee present at the same worksite. (Authorized representative generally applies in unionized workforces.)

New Requirement for Employees Exempted from Face Coverings. If an employee’s condition or disability prevents them from wearing a face covering and does not permit a nonrestrictive alternative, like a face shield with a drape, then the employee must maintain social distancing and either be fully vaccinated or tested weekly at no cost to the employee.

New Definition of COVID-19. COVID-19 is no longer defined as an infectious disease and is instead simply defined as “the disease caused by SARS-CoV-2.”

These revisions are substantial and will affect how employers manage COVID-19 at the worksite. We recommend reaching out to your legal counsel to make sure that your COVID-19 Protocols incorporate these revisions.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying with the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.

Labor and Employment Practice Group

Jeff Dinkin

805.730.6820

jdinkin@stradlinglaw.com

Jared Speier

805.730.6804

jspeier@stradlinglaw.com

Intellectual Property Practice Group

Steven Hanle

949.725.4126

shanle@stradlinglaw.com