Employers may drop mask rule for vaccinated employees
On Thursday, the California Occupational Safety and Health Standards Board (OSHSB) adopted revised emergency temporary COVID-19 standards authorizing employers to allow fully vaccinated employees to go maskless in indoor workplaces, except in certain settings. The revised standards also drop workplace physical distancing rules.
Moments after the board voted, Gov. Gavin Newsom signed an executive order making the revised standards effective immediately.
‘Fully vaccinated’ defined
The standards define as “fully vaccinated” any person the employer “has documented” as having received, at least 14 days prior, the last required shot of the employee’s chosen vaccine. That includes vaccines that have received emergency use authorization from the FDA or, “for persons vaccinated outside the United States,” a vaccine listed for emergency use by the World Health Organization, such as the AstraZeneca vaccine.
Employer options for documenting vaccination status
According to Frequently Asked Questions (FAQs) Cal/OSHA posted about the new standards, an employer may choose one of three ways to document an employee’s vaccination status: (1) maintain a copy of an employee provided document proving vaccination, such as a vaccine card; (2) view an employee’s vaccination documentation and keep a record of having done so; or (3) have an employee self-attest to vaccination and maintain a record of that self-attestation. Any such record of employee vaccination must be
kept confidential.
Nothing in the revised standards “prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.”
When masks may be required
An employee who chooses not to submit proof of vaccination status must be treated as unvaccinated, and required to wear a face covering indoors, though an employer may not take any “disciplinary or discriminatory action against the employee.”
The California Department of Public Health requires that employers provide face coverings for all employee, regardless of vaccination status, in some workplaces, such as health care facilities, K-12 schools, homeless shelters and correctional facilities.
Face coverings required for workers not fully vaccinated
Employers also must provide face coverings to employees who are not fully vaccinated and ensure the face coverings are worn when the employees are indoors or in vehicles.
An employee who is not fully vaccinated may go unmasked in the workplace only in limited situations, such as when they are alone in a room or vehicle; eating and drinking while employees are at least 6 feet apart; and while performing a task that cannot be done with a face covering.
An employee who cannot wear a mask for healthrelated reasons, or who is hearing-impaired or communicating with someone who is, must wear an alternative face covering, “such as a face shield with a drape on the bottom.”
An employee unable to wear a face covering must “be at least six feet apart from all other persons unless the unmasked employee is either fully vaccinated or tested at least weekly for COVID-19 during paid time and at no cost to the employee.”
Respirators must be provided ‘upon request’
An employer must provide properly-sized N95 respirators to employees who are not fully vaccinated upon request and instruct the employee on how to get a good fit. Employers may either stock respirators or poll their workers to determine demand before obtaining the respirators. Once an employer learns it has employees wishing to wear respirators, “it should have enough on hand of the correct size and type to fulfill reasonably foreseeable requests upon demand.” The agency’s FAQs assure employers they will not be cited for running out of respirators if the employer made a “good faith estimate and effort to provide respirators as soon as possible to employees that request them.”
Further changes may be recommended to the standards in the months ahead by a three-member OSHSB subcommittee.