With the current Cal/OSHA Emergency Temporary Standards (“ETS”) set to expire on May 5, 2022, Cal/OSHA recently approved a third readoption of the ETS to go into effect on May 7, 2022.
The new ETS contains several notable changes from the previous version, reflecting the current trends in COVID-19 policy. For example, the ETS eliminates the distinction between vaccinated and unvaccinated employees, defers significantly to the California Department of Public Health (“CDPH”), and eliminates the previous cleaning and disinfecting requirements for surfaces and objects.
It is important to remember that California employers must also follow the requirements imposed by the CDPH and their local health departments, in addition to the ETS.
A summary of the changes in the new ETS is provided below.
Face Coverings. The new ETS makes several revisions to the previous face covering requirements, including:
- Face coverings no longer need to use “fabrics that do not let light pass through when held up to a light source.”
- Employers are now required to provide respirators (i.e., N95s or KN95s) to all employees upon request, not just unvaccinated employees.
- Employees exempt from any face covering requirement due to a disability or medical condition who cannot wear a non-restrictive alternative no longer need to maintain 6 feet of distance from others in the workplace.
- Close contacts of a COVID-19 case who return to work before 14 days are no longer required keep 6 feet of distance from others and wear a face covering, unless otherwise required by the CDPH or local health department.
COVID-19 Testing. The following changes were made to the ETS’ COVID-19 testing requirements:
- Employers now must make COVID-19 testing available at no cost during paid time to all employees with COVID-19 symptoms, regardless of vaccination status (previously only required for unvaccinated employees).
- Tests may be self-administered and self-read if another means of independent verification can be provided (e.g., a time-stamped photograph of the results). Previously, tests could only be self-read and self-administered if observed by the employer or an authorized telehealth proctor.
Return to Work Requirements. Exclusion periods for those who contract COVID-19 or are close contacts of someone with COVID-19 largely remain the same. As before, employers must follow the longer of the exclusion periods provided by the CDPH and their local health department. The new ETS simply codifies this pre-existing requirement and employers must continue to pay “exclusion pay” to employees excluded from work due to a workplace exposure to COVID-19. The current quarantine and isolation timelines under the most recent CDPH guidance are as follows:
- Close contacts (i.e., shared the same indoor space as someone with COVID-19 for a cumulative total of 15 minutes over a 24-hour period):
- Not required to quarantine if asymptomatic.
- If symptoms develop, should test for COVID-19 and remain in isolation while waiting for test results.
- If unable to test, must self-isolate for 10 days after onset of symptoms.
- Must self-isolate for at least 5 days.
- Isolation can end after Day 5 if: (1) symptoms are not present; or (2) symptoms are resolving and person receives a negative test result collected on Day 5 or later.
- If unable to test, isolation can end after Day 10 if fever-free for 24 hours without the use of fever-reducing medications
Employers should also review the guidelines of their local health department as return to work timelines may differ depending on the locality.
Cleaning & Disinfection. The cleaning and disinfecting requirements of the previous ETS are eliminated. Employers are no longer required to implement cleaning and disinfecting procedures for surfaces and objects, including the previous requirement of disinfecting areas used by a COVID-19 case during their infectious period.
COVID-19 Outbreaks. In the event of a COVID-19 outbreak (i.e., 3 or more employees in an exposed group test positive and visit the workplace within a 14-day period), employers need to make COVID-19 testing available to all employees in the exposed group, regardless of vaccination status. Employees with close contact must be excluded from work unless they receive a negative COVID-19 test taken within 3 to 5 days after the last close contact.
When there is a “major” COVID-19 outbreak (i.e., 20 or more employees within an exposed group test positive and visit the workplace within a 30-day period), employers now must require all employees in the exposed group to test twice per week (or more frequently if recommended by the local health department). Employers only had to make testing available under the previous ETS. Additionally, employers no longer need to install partitions where physical distancing cannot be maintained.
Employer-Provided Housing & Transportation. The new ETS makes the following changes regarding employer-provided housing and transportation:
- There is no more exemption for housing and vehicles in which all persons are fully vaccinated – the regulations apply to all employer-provided housing and transportation.
- Employers are now required to provide training to employees on when face coverings should be used per CDPH and local health department guidance. Previously, employers only needed to provide employees with information on the guidance.
- The requirements regarding cleaning and disinfecting and sharing household items are removed.