Cal/OSHA to Vote on Relaxed COVID-19 Standards with No Masks for Vaccinated Workers

After it canceled changes that were planned for its COVID-19 emergency standard last week, the Cal/OSHA Standards Board has introduced new, more relaxed revisions that it will vote on at its June 17 meeting. 

The Standards Board decided to cancel the revisions in response to the California Department of Public Health’s new guidance that vaccinated people will not need to mask up in most settings, which contradicted the planned rules changes that were slated to take effect last week.  

Those planned rules had led to a public outcry from employers in the state, saying they were overly burdensome and conflicted with advice from health authorities.  

Under the new proposed rules, fully vaccinated employees will not have to wear masks indoors even if they have unvaccinated colleagues in their midst. Unvaccinated workers, however, would still be required to wear masks at work in most circumstances.  

The board is set to vote on the new standard on June 17, and if approved it would take effect by June 28 because it would also have to be reviewed and cleared by the Office of Administrative Law. But Governor Gavin Newsom said on June 15 that if the board approved the changes, he likely would issue an executive order requiring that it take effect sooner than June 28.  

The earlier version of the changes included keeping physical distancing protocols in place until July 31. This later revision jibes more closely with Newsom’s state reopening guidelines. 

Here are the main changes that are in the new proposed rules:  

• Physical distancing requirements for workers are revoked. 

• Vaccinated workers would not be required to wear masks in most indoor settings. However, for unvaccinated workers, face coverings will be required indoors or when in vehicles, with limited exceptions.  
• Employers will be required to provide and enforce face masks for employees not fully vaccinated and working indoors or in vehicles.  
• Employers will be required to provide masks to employees “upon request.” 
• Starting July 31, employers must provide a respirator to all employees who aren’t fully vaccinated for voluntary use, and train employees on how to properly wear a respirator. 
• The current requirement that “cleanable solid partitions” be installed when physical distancing isn’t possible between employees and “other persons” has been eliminated. 

• Employers must continue to provide COVID-19 training, including new training subjects such as COVD-19 vaccination and testing access and policies, leave policies, and the employer’s respirator policies. 
• The definition of “fully vaccinated” requires that the employer have documentation of vaccinations in order to avail itself of provisions specially tailored to vaccinated employees. However, the proposed language does not specify how or on what form an employer must maintain such documentation. 
• The original emergency temporary standard was set to sunset on July 31. All references to that have been removed from the proposal. 

The good news is that if COVID-19 continues its low rate of spread in California, the entire emergency standard could be scrapped.  

Despite all of these changes, Cal/OSHA warned in its new proposal:  

“As reflected in the proposed emergency regulations, the use of effective vaccines has reduced the need for some of the protections put into place by the November 30th, 2020, emergency temporary standard. However, a serious hazard to employees still exists.  

“A very large proportion of California employees remain unvaccinated as of the scheduled June 17th Standards Board meeting. Unvaccinated employees will therefore be particularly at risk, especially given the spread of especially contagious SARS-CoV-2 variants, unless protective measures are taken.” 

The takeaway

Obviously, not all employees in California will be fully vaccinated and it’s common knowledge that many people have decided not to get inoculated. Also, for those who are unvaccinated, they can still refuse to wear a respirator.

Employers will need to enforce mask usage and physical distancing among those unvaccinated workers or risk being fined by Cal/OSHA.

And in regards to keeping records of which workers have been vaccinated, employers will need to address potential privacy and record-keeping implications in maintaining such records in light of workplace safety and health, employee confidentiality, and HIPPA regulations.