The California Occupational Safety and Health Standards Board (the “Board”) voted this week to readopt the Emergency Temporary Standard (ETS) on COVID-19 prevention. The readopted ETS will be effective January 14, 2022. The readoption includes substantive changes to definitions as highlighted below and a few clarifications from the ETS last readopted on June 17, 2021. You can access the readoption with comparison notes here.
Here are the key readoption changes in the ETS that California employers will want to know:
- The definition of face covering has changed. “Face covering” means a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers (i.e., fabrics that do not let light pass through when held up to a light source) that completely covers the nose and mouth and is secured to the head with ties, ear loops, or elastic bands that go behind the head.
If gaiters are worn, they must have two layers of fabric or be folded to make two layers.
This definition includes clear face coverings or cloth face coverings with a clear plastic panel, which may be used to facilitate communication with people who are deaf, hearing impaired, or others who need to see a speaker’s mouth or facial expressions to understand speech or sign language respectively.
- The definition of “worksite” has been further clarified. “Worksite,” for the limited purposes of COVID-19 prevention regulations only, does not apply to buildings, floors, or other locations of the employer that a COVID-19 case did not enter, 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
Again, this is not an exhaustive summary, and we would urge all covered California employers1 to review the ETS in entirety before the effective date, as existing Injury and Illness Prevention Programs (IIPP) and COVID-19 Prevention Programs will need to be updated to remain compliant. As a reminder, Cal/OSHA will enjoy greater enforcement authority beginning January 1, 2022, thanks to Senate Bill 606, when non-compliant IIPP or COVID-19 Prevention Program will create a rebuttable presumption of company-wide violations for a multi-site employer.
Shortly after, the Board adopted this emergency proposal, Governor Newsom released an Executive Order that the readopted ETS will be effective from January 14, 2022, through April 14, 2022. The Governor’s Executive Order also waived the limitation on a third readoption meaning that the ETS may be around for much longer than we previously expected.
Recommendations for California Employers
Before the readopted ETS becomes effective, California employers should:
- dust off their written IIPPs and COVID-19 Prevention Programs;
- prepare for a new round of training; and
- continue to monitor Cal/OSHA FAQ’s for updates regularly.
As always, our employment law & labor relations team is available to answer your questions about implementing COVID-19 prevention measures or responding to a Cal/OSHA investigation.
1 Covered California employers includes all employees and places of employment with the exception of: work locations with one employee who does not have contact with other persons, employees working from home, employees teleworking from a location of the employee’s choice and not under the control of the employer, and employees covered under the ATD standard.