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Economic Development Collaborative (EDC) Legal Alert — Cal/Osha Emergency Temporary Standard

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UPDATED: CAL/OSHA EMERGENCY TEMPORARY STANDARD
On November 4, the U.S. Department of Labor’s Occupational Safety and Health Administration announced a new emergency temporary standard to protect more than 84 million workers from the spread of the coronavirus on the job. The nation’s unvaccinated workers face grave danger from workplace exposure to coronavirus, and immediate action is necessary to protect them.
New Requirements for Employers with 100 or More Employees
Under this standard, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The emergency temporary standard (ETS) covers employers with 100 or more employees – firm or company-wide – and provides options for compliance. The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.
The ETS also requires employers to do the following:
  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.
The emergency temporary standard does not require employers to pay for testing. Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements. Employers are also not required to pay for face coverings.
The ETS will cover two-thirds of the nation’s private-sector workforce. In the 26 states and two territories with OSHA State Plans, the ETS will also cover public sector workers employed by state and local governments, including educators and school staff.
The ETS is effective immediately upon its publication in the Federal Register. Employers must comply with most requirements within 30 days of publication and with testing requirements within 60 days of publication.
Resources
  • For more information, see the Department of Industrial Relations’ FAQ on the new ETS and the DIR’s COVID-19 Prevention Emergency Temporary Standards webpage HERE.
  • For EDC COVID-19 Business Resources click HERE.
  • Assistance from Fisher Phillips LLP:
  • For individual guidance you can contact: Hannah Sweiss, hsweiss@fisherphillips.com, 213.330.4497 or Aymara Ledezma, aledezma@fisherphillips.com, 213.330.4470
  • Recorded Webinars: California Employers’ 9-Step Compliance Blueprint For Cal/OSHA COVID-19 Safety Standard. To access the video recordings, follow the links below. Part 1 will require the password listed below.
  • Fisher Phillips Webinar PART 1: CLICK HERE Password: mzdK&5s$
  • Fisher Phillips Webinar PART 2: CLICK HERE
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Stay up-to-date on local, state and federal resources related to the pandemic by visiting our COVID-19 Business Resource page regularly CLICK HERE.
This document is intended to be used as a starting point to help business owners understand the new Cal/OSHA COVID-19 requirements. It is not comprehensive. While everything this article is intended to be accurate it is not intended legal advice and should not be relied on as such. To obtain legal advice please contact a licensed California attorney.
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