On January 8, CalOSHA issued a list of frequently asked questions clarifying their November 30, 2020 COVID-19 Emergency Temporary Standard (“ETS”). The is the second FAQ issued by the agency as guidance for the FAQ, which all applies to all California employees, except for (1) employees who are already covered under the CalOSHA Aerosol Transmissible Diseases standard, (2) employees who are working from home, and (3) single-employee employers who do not have contact with others.
The recent FAQ attempts to clarify uncertainty left by the original ETS and subsequent FAQ; this FAQ greatly increases the number of questions and answers from CalOSHA. This FAQ constitutes legal policy, thus it cannot enact new law, but it does clarify ambiguity in the original ETS.
The FAQ states that until Feb. 1, CalOSHA will issue citations but not assess monetary penalties for violations of the ETS that would not have been considered a violation of the employer’s Injury and Illness Prevention Program, respiratory protection program or other applicable CalOSHA standards. Further, during this timeframe, CalOSHA will not assess monetary penalties for violations of the ETS as long as the employer shows good-faith efforts to comply with the ETS; the employer abates the violation; and the violation does not constitute an imminent hazard.
The updated FAQ also clarifies some of the social distance requirements of the ETS. The FAQ notes that measuring the space between two peoples’ bodies or measuring the distance between two peoples’ breathing zones (distance between their heads) are both methods Cal/OSHA would accept when determining whether employees are maintaining 6 feet of physical distancing. Additionally, if physical distancing is not possible at fixed work locations an employer must install cleanable solid partitions that reduce the risk of aerosol transmission (such as Plexiglas barriers). These partitions must be large enough “to reduce the risk of aerosol transmission.”
CalOSHA also responded to some feasibility issues regarding compliance with the ETS. The agency noted that some employers have processes that prevent the use of outdoor air for ventilation. The agency notes that they will consider the processes or environments necessary to perform the work when assessing feasibility.
The FAQ also addresses the changing nature of the pandemic due to the availability of vaccines. The agency notes that all prevention measures must continue to be implemented for employees who have been vaccinated, but CalOSHA will likely address the impact of vaccines in a future revision to the ETS.
The FAQ further notes that the ETS does not apply to employees who are working from remote locations other than their home, such as hotels or rental properties.
The full updated FAQ is available at: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html
