CALIFORNIA REOPENS FOR BUSINESS… FINALLY!
California Builders Alliance – Capitol Update 06/21/2021 – Open for business but still faced with regulatory and legal burdens
After 15 months of emergency regulations and an unprecedented lockdown prompted by the COVID-19 pandemic, California has finally reopened. While reopening brings relief and the opportunity for an economic rebound, many of the businesses upon which the State is relying for this rebound face the re-opening with mixed feelings of relief and apprehension.
The coronavirus brought with it not only a health crisis but also the threat of liability lawsuits. With the avalanche of virus-inspired regulations and emergency declarations, businesses that struggled to operate during the closure were left exposed to potential legal actions for even minor misunderstandings of covid related regulations.
The government did little to protect businesses from the liability threat. Apprehension over liability lawsuits resurfaces now with the June 15 re-opening, especially since confusion reigns over mask-wearing, physical distancing, and vaccination requirements. State officials are trying to make Covid-19 related rules uniform. However, while various and confusing rules exist, business operators are at risk.
For years, California businesses have been plagued with disruptive and troublesome legal actions even for minor infractions or misunderstandings of the state’s complicated labor laws. Business owners should be given time to correct minor violations without the threat of facing an expensive lawsuit. Unfortunately, the legislature has not handled this issue properly and with the June 15 re-opening, a new opportunity arises to potentially threaten businesses.
CALIFORNIA EMPLOYERS PERMITTED TO DROP MASK MANDATE FOR VACCINATED WORKERS
After nearly two weeks of back-and-forth rules regarding masking, the Cal/OSHA Standards Board adopted revised COVID-19 Prevention Emergency Temporary Standards that reflect the state’s latest COVID-19 public health order. Following the June 17th ruling, Governor Newsom signed an executive order enabling the revisions to take effect without the normal 10-day review period by the Office of Administrative Law, providing much-needed clarity and consistency for employers and employees as California fully reopens its economy.
Among other updates, Cal/OSHA’s revisions align with the latest guidance from the California Department of Public Health – based on guidelines issued by the Centers for Disease Control and Prevention – on face coverings and eliminate physical distancing requirements, except for certain employees during outbreaks. Unless they show symptoms, fully vaccinated employees do not need to be offered testing or be excluded from work after close contact with a COVID-19-positive person.
With over 40 million vaccines administered and amongst the lowest case rates and transmission rates in the nation, the state eliminated pandemic-related restrictions on June 15th that have been in place over the past year.
Businesses seeking assistance to provide N95 respirators for unvaccinated employees as required by the revised Emergency Temporary Standards can find distribution locations for state-provided N95 respirators here. Information on the revised COVID-19 Prevention Emergency Temporary Standards can be found here.
CHANGES TO EMERGENCY TEMPORARY STANDARDS TO TAKE EFFECT IMMEDIATELY
Cal/OSHA‘s Standards Board adopted further revisions to the existing Emergency Temporary Standards first adopted in November of 2020. Most notably the new ETS makes the following significant changes:
- Allows employers to permit fully vaccinated employees to work indoors without face coverings.
- Eliminates physical distancing requirement in non-outbreak settings.
- Requires employers to make available N95 respirators upon request to unvaccinated employees.
The adoption follows weeks of back and forth with the Board rejecting prior revisions to the original ETS and then reversing itself. But according to the Governor, these changes were an attempt to “align requirements related to physical distancing and face coverings with public health directives.” In response to mass public confusion regarding the different revisions, as well as the extent of ongoing obligations to minimize COVID-19 transmission at work, Cal/OSHA published FAQs prior to the adoption of the revised ETS. California employers should review the latest information on the revisions in Cal/OSHA’s Frequently Asked Questions.
REQUIREMENTS FROM THE NOVEMBER 2020 ETS THAT WILL REMAIN
While much talk relates to what has changed in the revised Emergency Temporary Standards, many provisions remain in place. The ETS still requires:
- An effective written COVID-19 Prevention Program.
- Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
- Providing notification to public health departments of outbreaks.
- Providing notification to employees of exposure and close contacts.
- Requirements to offer testing after potential exposures.
- Requirements for responding to COVID-19 cases and outbreaks.
- Quarantine and exclusion pay requirements.
- Basic prevention requirements for employer-provided housing and transportation.
BEST PRACTICES FOR VERIFYING VACCINATION
According to the Emergency Temporary Standards revised on June 17th, vaccination status must be documented by the employer for any employee not wearing a face covering indoors. However, the proposed revised ETS does not specify a particular method. Acceptable options include:
- Employees provide proof of vaccination (vaccine card, image of vaccine card, or health care document showing vaccination status) and the employer maintains a copy.
- Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
- Employees self-attest to vaccination status and the employer maintains a record of who self-attests.
Records concerning vaccinated personnel must be kept confidential. Since there are additional confidentiality issues related to maintaining proof of vaccination cards or documents, many employers are choosing not to collect copies of those records but simply designating a confidential employee such as an HR Professional or Manager to review the record and document such or collect record of self-attestation.
Employees have the right to decline to state if they are vaccinated or not. In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.
Employers cannot retaliate against workers for wearing face coverings, including when the worker is wearing a face covering voluntarily. Also, nothing in the revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.
EMPLOYER’S DUTY REGARDING RESPIRATORS
The Emergency Temporary Standards revised on June 17th requires employer to provide respirators in two scenarios: (1) to any unvaccinated employee who works with others indoors or in a vehicle and who requests one and (2) where there is a major outbreak, to any employees in the exposed group for voluntary use. Yet, there is no requirement that an unvaccinated employee wears such a respirator.
Cal/OSHA’s FAQ clarified that to “provide respirators upon request” an employer may either stock respirators and offer them to employees or may poll workers to determine which employees wish to be provided a respirator before obtaining them. However, once an employer has established that it has employees who wish to wear respirators, it should have enough on hand of the correct size and type to fulfill reasonably foreseeable requests upon demand. If an employee prefers to select and purchase his or her own respirator, an employer may permit this alternative, as long as the employer reimburses the employee in a timely manner. Furthermore, in a major outbreak, respirators must be offered to employees regardless of vaccination status and without waiting for a request from the employee. The employer must offer respirators immediately upon determining a major outbreak is underway.
Employers should be advised that respirators must be the right size, and the employee must receive basic instruction on how to get a good “seal” or fit.
CALIFORNIA ESTABLISHES DIGITAL VACCINE RECORD
The California Department of Public Health and California Department of Technology announced a new Digital COVID-19 Vaccine Record on June 18th, available at myvaccinerecord.cdph.ca.gov. The tool allows Californians who received a COVID-19 vaccination to access their record from the state’s immunization registry systems. The Digital Vaccine Record follows national standards for security and privacy, is built by the state, and provides Californians a way to view and save their vaccine record.
The record shows the same information as the paper CDC vaccine card: name, date of birth, date of vaccinations, and vaccine manufacturer. It also includes a QR code that makes these same details readable by a QR scanner. Once the digital record is received, individuals are encouraged to screenshot the information and save it to their phone files or camera roll.