On Thursday, December 16, 2021, the Standards Board of the California Division of Occupational Safety and Health (Cal/OSHA) voted to update and readopt rules it had previously put into effect to deal with the COVID-19 pandemic.
Cal/OSHA’s action came a day after the reimposition of a statewide mask mandate. California’s Department of Public Health reimposed the indoor mask mandate on December 15, and it is to be in place through at least January 15, 2022.
Notably, the new mask mandate is set to sunset the day after Cal/OSHA’s new rules are to take effect on January 14, 2022. Cal/OSHA’s rules are expected to remain in place for a minimum of 90 days.
Significant New Workplace Restrictions
Cal/OSHA’s new rules require fully vaccinated individuals to wear face coverings and maintain physical distancing from other workers for 14 days if they have been exposed to COVID-19. Previously, under rules adopted by Cal/OSHA over the summer, fully vaccinated employees were not required to wear facial coverings.
Reaction to the new rules has been mixed. Business groups have argued that reimposing these requirements for fully vaccinated employees is unnecessary and burdensome. “Treating vaccinated and unvaccinated people similarly really denies the scientific value of the vaccine and disincentivizes vaccination,” said Rob Moutrie, a policy advocate at the California Chamber of Commerce. In contrast, employee advocates have pointed out that breakthrough infections can occur and that vaccination is not a panacea. “It’s good that we’re realizing that vaccines aren’t the silver bullet to get us out of this,” said Mitch Steiger, a legislative advocate for the California Labor Federation. “There’s never a good time to start disarming against COVID-19.”
Excluded Employee Pay Requirements
Cal/OSHA’s new rules also update the requirements for employers to pay employees who are excluded from workplaces due to COVID-19. Under the rules, exposed employees do not need to be excluded (and therefore paid for time out of work) if they are fully vaccinated, wear face coverings and distance themselves from others for 14 days.
The new rules will now go to the Office of Administrative Law (OAL) for review before implementation.
This is the second adoption of temporary COVID-19 standards, the maximum permitted by law. The Cal/OSHA Standards Board is now considering whether to make the rules permanent or to adopt a different approach, and it is expected to make a decision on how to proceed by April 2022, when the current temporary rules expire.
Manatt will continue to monitor developments on this topic.