Cal/OSHA is expected to vote on new Emergency Temporary Standards (ETS) for California workplaces on June 17, revisions that were swiftly arrived at to comply with state and CDC guidance on mask wearing and social distancing.
While the vote is slated for Thursday, there will be a roughly 10-day wait for the new rules to take effect, Robert Moutrie, policy advocate with the California Chamber of Commerce, told the Northern California Record.
“I think the most important takeaway is to know that the June 15 reopening doesn't apply to workplaces the same way it applies to members of the public, and businesses have to keep that in mind and look into their responsibilities under this,” Moutrie said. “It's just a short window, but they should be aware of the differences in that window.”
During the waiting period, the Office of Administrative Law (OAL) must approve the Cal/OSHA revisions, and businesses must still follow the original Cal/OSHA standards on Covid-19 mitigation.
The new revisions announcement came late on June 11, and the quick turnaround to better adhere to state and federal guidelines was much needed and appreciated, Moutrie said.
“The new revision Friday touched on a couple of key areas where stakeholders and even the Standards Board had acknowledged concerns with the last draft which had been passed and then recalled,” Moutrie said. “Key among those was the use of face masks; the prior draft had required face masking if anyone in the room was unvaccinated. That was inconsistent with the CDC and just too much to keep track of on the practical side.
“This new language is going to change that to be aligned with the CDC to say that if you are vaccinated, you don't need to wear a mask, broadly speaking, and if you’re unvaccinated, you do.”
Moutrie noted another key improvement is with social distancing.
“The last draft had distancing in place until July 31, and a lot of people have rightfully said that's very inconsistent with the governor's June 15 opening,” Moutrie said.
Much of the business community is supportive of the changes.
“On behalf of Cal Chamber, we think it's a good improvement – it's not perfect, there are still issues to be addressed, but this is a good improvement that we think Cal/OSHA worked on in a very short timeline, and so we're glad to see it turned around quickly.”
Moutrie noted the profound confusion about masks and social distancing that arose from the prior revisions prompted Cal/OSHA to act with urgency.
Still, a lingering concern is the issue of vaccination documentation; how is an employer supposed to determine who is unvaccinated and who isn’t?
“That's another area where we hope to get some clarification: how do employers ask these questions, and how do they maintain the information of who is vaccinated and who's not in a safe way,” Moutrie said. “That information was not forthcoming in this text, so we’re hoping to see that in FAQs as soon as possible.”
It’s also a multi-jurisdictional issue, because EEOC and other discrimination-focused agencies have issued guidance that says employers are allowed to ask about vaccination status.
“But it’s technically guidance,” Moutrie said. “Sometimes guidance cannot be relied on as a defense in a litigation matter because it’s not the same as a statute; so all of those logistical questions are still being shaken out right now, and that's the place where FAQs or clarification from Cal/OSHA would really be appreciated.”
Moutrie noted another issue not resolved in the revised text is the issue of N95 masks.
“There had been that concern over the last couple weeks that the text required stockpiling N95s,” Moutrie said. “The business community was looking for revisions there to clarify exactly how many N95s had to be stockpiled, so that's an outstanding issue that business owners should keep an eye on.”