June 2021 Newsletter – School Districts

***   Update – June 10, 2021   ***

CalOSHA has withdrawn the regulatory package that was anticipated to change employer obligations in responding to COVID-19. DIR reports that the move is in response to updated face-covering guidance from the California Department of Public Health, issued on June 9, 2021. While this makes planning difficult, we will issue an update when new regulatory guidance is submitted to the Office of Administrative Law. At present, existing regulations will continue and there is no firm timeline for an effective amendment, with June 17, 2021, representing the next possible date that the Occupational Safety and Health Standards Board may act.

New Regulations Regarding COVID-19 Safety Standards

The following is a courtesy update of a recently introduced regulatory measure that may impact the operations of the District. As you know, on April 6, 2021, Governor Newsom issued a statement on announcing that California would fully open its economy on June 15 if two criteria are met: (1) if vaccine supply is sufficient for Californians 16 years and older who wish to be inoculated and (2) if hospitalization rates are stable and low. (See Office of Gavin Newsom.)

On June 4, 2021, CalOSHA announced that revised COVID-19 standards had been adopted, and were anticipated to go into effect before the Governor’s June 15th milestone. (See DIR Release 2021-58.) The changes are currently under review by the Office of Administrative Law, and it is anticipated that the effective date could vary any time between June 15th and July 31, 2021.

The revised regulations modify several aspects of the initial regulatory package that became effective late last year, yet maintains the overall intent to mitigate transmission of COVID-19. CalOSHA has published a courtesy copy of those regulations, available here. Notable substantive changes include:

  1. Face Coverings: The new regulations recognize that employees may have different exposure risks depending upon whether they are vaccinated or unvaccinated. As a result, fully-vaccinated employees are not required to wear face coverings indoors when in a room with other fully-vaccinated individuals. (8 C.C.R. § 3205(c)(7).) However, the new regulations require that employers provide non-vaccinated employees with respirators – specifically defined to include N-95-rated masks – when working indoors. (8 C.C.R. §§ 3205(c)(6)(B); 3205(b)(12).)
  2. Physical Distancing: After July 31, 2021, employers will no longer need to maintain or erect partitions/barriers, nor maintain the general 6-feet of physical distance currently required when all unvaccinated workers are supplied with N-95 masks. In the interim period, personnel should continue to utilize existing barriers, physical distancing limits, and cloth-face coverings.
  3. COVID-19 Prevention Policy: Employers continue to be required to maintain current COVID-19 Prevention Program/Policies (CPP), either within or as an addendum to the Industrial Illness Prevention Program. However, the amended regulations require that an additional factor be added to the “training and instruction” portion of the CPP, including “the fact that vaccination is effective at prevention COVID-19, protecting against both transmission and serious illness or death.” (8 C.C.R. § 3205(c)(5)(I).)
  4. Exclusion of COVID-19 Cases: Under existing regulations, an employer is required to exclude COVID-19 cases from the workplace in an effort to limit transmission of COVID-19. (8 C.C.R. § 3205(c)(10).) This mandatory exclusion does not apply to employees who: work from home; do not meet the definition of a COVID-19 case; or are not subject to an isolation order. Under the anticipated amendment to the regulations, employers are no longer required to exclude fully-vaccinated employees who have had close contact with a COVID-19 case. (8 C.C.R. § 3205(c)(10)(B).)

We recognize that the efficient operation of the District is of paramount importance, and that this regulatory action represents a proposed – rather than effective – change in employer obligations. However, we also recognize that even a short delay in considering the impact of these changes may negatively affect policy development or collective bargaining efforts. Of notable importance is the respirator mandate, explicitly requiring NIOSH ratings of N-95 for employer-supplied respirators, rather than simple “face coverings” that have sufficed to this point.

As we’re sure you recall, beginning in March of 2020, there were notable supply-chain issues in procuring N-95 masks due to increased demand, a condition that may again become reality with the amended regulations. Accordingly, we hope that the additional notice will permit districts to begin steps to make the necessary purchasing and procurement decisions before an issue of regulatory non-compliance is created.

If you have any questions or concerns, or if you would like to further discuss this matter, please do not hesitate to contact us.

For more information regarding this article, please contact Joshua Taylor at jtaylor@Ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@Ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice. If you would like further information on this matter, please contact our office.