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June 1, 2021

California employers may now allow fully vaccinated employees not to wear face coverings indoors but must document their vaccination status. The Cal/OSHA Standards Board voted 5-1 to approve the revised COVID-19 Emergency Temporary Standards (“ETS”) and, became effective on June 18, 2021.

Consistent with prior COVID-19 related regulations and considering that not all employees are vaccinated, the amended standards pose additional responsibilities on employers, including:

  1. Maintain a written record of vaccination status for any employee not wearing a face covering indoors; this record should be kept confidential.
    1. Request that employees provide proof of full vaccination (e.g., vaccine card, image of vaccine card or healthcare document showing vaccination status).
      1. Self-attestation is acceptable proof according to the ETS.
    2. Given that an employee has the right to decline to state whether they are vaccinated, employers should treat these employees as unvaccinated. No disciplinary or discriminatory action against these employees should be taken.
  2. Require that face coverings be worn indoors for unvaccinated employees, except when they are alone in a room or eating/drinking.
  3. Remove physical distancing and barrier requirements regardless of employee vaccination status, except under the following circumstances:
    1. When necessary to implement physical distancing and barriers should an outbreak occur.
    2. If an outbreak occurs, reinstate physical distancing requirements and barriers.
  4. Provide unvaccinated employees with approved respirators (N95) as required (or requested) and to all employees, regardless of vaccination status, in the event of a major outbreak. An employee may choose to use their own mask.
  5. Indicate that no employee will be retaliated against for wearing a face covering. Failure to comply should not be tolerated, subject to disciplinary action.
  6. Stress to employees that if they believe they need an accommodation, to promptly discuss the request with management.

Contact your Pearlman, Brown, and Wax legal advisor to learn more on the recommended changes employers should implement immediately.


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