Newsletter Highlights:

1. CDC Changes Effective May 13, 2021
2. Vaccine Mandates in the Workplace
3. CAL/OSHA Changes Effective June 17, 2021
4. Respirator Obligations for Employers
5. Vaccine Documentation (CA)

CDC CHANGES: The CDC has announced an update regarding fully vaccinated people. If you have been fully vaccinated, you can gather indoors with other fully vaccinated people without a mask. You can also gather indoors with unvaccinated people from one other household without masks UNLESS any of those people or anyone they live with are at higher risk for severe illness from COVID-19. If you are vaccinated and exposed to someone with COVID-19, you do not need to quarantine or get tested unless you have symptoms.

Who is Considered Fully Vaccinated: According to the CDC, people are considered fully vaccinated: 2 weeks after their second dose in a 2-dose series or2 weeks after a single-dose vaccine

The CDC says that, for now, if you’ve been fully vaccinated:

• You will still need to follow guidance at your workplace and local businesses.
• If you travel, you should still take steps to protect yourself and others.
• Masks are required on planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations. CDC recommends that travelers who are not fully vaccinated continue to wear a mask and maintain physical distance when traveling.
• You should still watch out for symptoms of COVID-19, especially if you’ve been around someone who is sick. If you have symptoms of COVID-19, you should get tested and stay home and away from others.
• People who have a condition or are taking medications that weaken the immune system, should talk to their healthcare provider to discuss their activities. They may need to keep taking all precautions to prevent COVID-19.

COVID-19 vaccines are effective at preventing COVID-19 disease, especially severe illness and death. COVID-19 vaccines reduce the risk of people spreading COVID-19.

What We’re Still Learning

• How effective the vaccines are against variants of the virus that causes COVID-19. Early data show the vaccines may work against some variants but could be less effective against others.
• How well the vaccines protect people with weakened immune systems, including people who take immunosuppressive medications.
• How long COVID-19 vaccines can protect people.

VACCINE MANDATES IN THE WORKPLACE

Employers are likely to mandate vaccines at the workplace as soon as the Pfizer and Moderna vaccines obtain full regulatory approval.  Full licensing approval is likely to come by this fall or winter. The showdowns between employee and employer largely occur along the lines that the vaccines have not been approved.  Concerns around vaccine efficacy will be diminished upon FDA approval.  Employers will still have to provide accommodations to employees under the ADA guidelines. EEOC has stated that employers must make accommodations for employees who decline vaccine for health conditions or religious beliefs.  Even though the litigious elements of the vaccination will wane, legal input on your vaccination policy is a must.  Union workforces will require a collaborative process as well.

Storing vaccine records may be another challenge to employers. EEOC, which enforces civil rights laws, states that employee vaccination status must be kept confidential under the ADA confidentiality requirements.  The vaccination records therefore must be kept separate from personnel files.  Personal record breaches can trigger confidentiality claims that can cost thousands of dollars. State requirements for the time period that employee records are retained must be followed as well.  California mandates vaccination status be documented. See CA specific guidance below.

Fed-OSHA has noted that adverse reaction to vaccines under employer mandate is not considered a workplace injury or illness. https://www.osha.gov/coronavirus/faqs#vaccine

CAL/OSHA WHAT CHANGED:

• Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contact with COVID-19 cases unless they have symptoms.
• Unvaccinated persons are required to wear face coverings and physically distance indoors.

• No face coverings are requiring outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained on CDPH recommendations for outdoor use of face coverings.
• Employers may allow fully vaccinated employees not to wear face coverings indoors, but they must document employee vaccination status. There are some settings where CDPH requires face coverings regardless of vaccination status. During outbreaks, regardless of vaccination status, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained.
• Upon request, employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others.
• Employers may not retaliate against employees for wearing face coverings.
• There are no physical distancing or barrier requirements regardless of employee vaccination status, with the following exceptions:
  • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
  • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
• No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
• Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations. 
• Employers must evaluate ventilation systems to maximize outdoor air filtration, increase filtration efficiency, and evaluate the use of additional air cleaning systems.

CAL/OSHA WHAT DID NOT CHANGE

Employer requirements for the following have not changed:

• An effective written COVID-19 Prevention Program.
• Effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
• Notification to public health departments of outbreaks.
• Notification to employees of exposure and close contacts.
• Offer testing after potential exposures.
• Responding to COVID-19 cases and outbreaks.
• Quarantine and exclusion pay requirements.
• Basic prevention requirements for employer-provided housing and transportation.

Barriers (CA):

• Nothing in the revised ETS prevents employers from implementing additional protective measures than are required, including the use of physical distancing and barriers.
• Employers are under an ongoing requirement to assess workplace hazards and implement controls to prevent transmission of disease. There may be circumstances in which employers determine that physical distancing is necessary in their workplace.

EMPLOYER RESPIRATOR OBLIGATIONS (CA)

Q:  What is an employer’s obligation to provide respirators?

A:  An employer must 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. The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal,” or fit.

Q:  What does it mean to “provide respirators upon request”?

A:  An employer must be able to provide the respirator upon request. Initially, 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 their own respirator, an employer may permit this alternative, as long as the employer reimburses the employee in a timely manner.

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.

An employer is under a continuing obligation to provide respirators to eligible unvaccinated employees at any time they communicate to the employer their desire to wear one.

Q: How soon does a respirator need to be provided after an employee requests it?

A: After initial implementation as described above, employers should provide requested respirators to unvaccinated employees as soon as possible.

Q: What if more employees request respirators than the employer anticipates and the employer runs out of respirators? Will Cal/OSHA cite the employer?

A: Cal/OSHA will not cite employers who make a good faith estimate and effort to provide respirators as soon as possible to employees that request them. If an employer runs out of respirators, they should order more respirators immediately. Cal/OSHA lists some but not all vendors that sell N95 respirators in large quantities (vendors able to fulfill orders of more than 100,000 units) at https://www.dir.ca.gov/dosh/wildfire/List-of-N95-Vendors.pdf. There are many vendors who have N95s available in smaller quantities.

Q:  Why is Cal/OSHA requiring respirators be offered to unvaccinated persons? Is this different from CDC and federal OSHA guidance?

A:  Under CDC and federal OSHA guidance, unvaccinated persons are required to wear face coverings and physically distance indoors. Cal/OSHA is requiring voluntary respirators since California is phasing out physical distancing; a well-fitting respirator reduces the risk of infection better than physical distancing alone and respirators are readily available. The ETS provides this as alternative protection for unvaccinated employees.

Q:  How often must an employer provide an employee with a new respirator?

A:  For voluntary use, respirator replacement varies with use and environment. Filtering facepiece respirators are disposable respirators that cannot be cleaned or disinfected. They must be replaced if they get damaged, deformed, dirty, or difficult to breathe through. A best practice is to replace filtering facepiece respirators at the beginning of each shift. Employers should follow the manufacturer’s instructions. CDC recommends replacing a disposable filtering facepiece respirator, such as an N95, after it has been taken on and off five times. Filtering facepiece respirators may not fit correctly after repeated use.

FACE COVERING REQUIREMENTS (CA)

Q:  Who has to wear face coverings?

A:  Face coverings are required indoors and in vehicles for unvaccinated employees. Employees in certain indoor settings must wear a face covering regardless of vaccination status, if required by CDPH order.

Though face coverings are not required outdoors, employers must communicate to workers that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained. Employers must provide face coverings to unvaccinated persons and make them available to vaccinated persons upon request. Last but not the least, customers may demand that the dealership employees wear a mask while moving their cars on the lot.  Employees will have to wear a mask then as well.

Q:  Are there exceptions to wearing face coverings indoors?

A:  Yes. The most common exceptions for unvaccinated persons are:

• When alone in a room or vehicle
• When eating and drinking
• When an accommodation is required
• When job duties make a face covering infeasible or create a hazard

Q:  Are workers protected from retaliation if they choose to wear a face covering, even if not required to do so?

A:  Yes. Employers cannot retaliate against workers for wearing face coverings, including when the worker is wearing a face covering voluntarily.

Training memo on the Usage of N95 Disposable Facepiece Respirators, CDC Guidance on Putting Disposable Respirators On & Off is being sent to all CSI Clients via separate email and is available on the eLearn Training Portal.

VACCINE DOCUMENTATION (CA)

Q:  Is documentation required for a fully vaccinated employee to work without a face covering indoors?

A:  Yes. Vaccination status must be documented. Use this Vaccine Status Questionnaire. The revised ETS does not specify a particular method. The employer must record the vaccination status for any employee not wearing a face covering indoors and this record must be kept confidential. Acceptable options include:

• Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
• Employees provide proof of vaccination and the employer maintains a record of the employees who presented proof, but not the vaccine record itself.
• Employees self-attest to vaccination status and employer maintains a record of who self-attests.

Nothing in the revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.

Q. What if the employee declines to state their vaccination status?

A:  Under the ETS, an employer is not obligated to require employees to submit proof of being fully vaccinated. Absent such a requirement, an employee has 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.

Disclaimer: The contents of this newsletter are merely for informational purposes only and are not to be considered as professional advice. Information from CDC, Fed-OSHA and Cal/OSHA was used to prepare part of this newsletter.  Employers must consult their lawyer for legal matters and safety consultants for matters related to safety.  The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA & OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.