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The latest version of California Occupational Safety and Health Administration (Cal/OSHA)’s COVID-19 Emergency Temporary Standards (ETS) is now in effect. The new ETS, which represent Cal/OSHA’s third readoption of the ETS originally implemented on November 30, 2020, extend required COVID-19 policies and protocols for California employers through December 31, 2022. The revised ETS and Cal/OSHA’s recently published updated FAQ and fact sheets are available here. For background on the ETS and their prior readoptions, please see our articles, here, here, and here.
The readopted ETS maintain many of the hallmarks of the predecessor standards, including the obligation to create, disseminate, and provide training on an effective COVID-19 Prevention Program, as well as the controversial requirement that employers maintain wages and benefits of employees excluded from work due to COVID-19 or a work-related COVID-19 exposure. However, the revised ETS include many significant changes that will immediately affect employer COVID-19 policies and practices. Below we highlight the most notable new or revised provisions of the current Cal/OSHA ETS.
Cleaning and Disinfecting Procedures Eliminated
The current ETS eliminate the COVID-19 cleaning and disinfecting requirements; however, employers must still encourage and allow time for hand washing and provide hand sanitizers. Additionally, the definition of a “COVID-19 Hazard” no longer includes surfaces and objects that might be contaminated with COVID-19.
“Fully Vaccinated” Definition Abandoned
The definition of “fully vaccinated” has been deleted from the current ETS. Thus, there are no longer different rules in the ETS for employees who are vaccinated from those that are not. Employers may still maintain non-discriminatory, mandatory vaccination policies in accordance with applicable accommodation laws.
Face Covering Rules Relaxed
The new ETS eliminate the requirement that employers ensure that all employees who are not fully vaccinated always wear a face covering indoors or in vehicles, except when an accommodation is required. The ETS do require that employers ensure face coverings are used during “Outbreaks” and “Major Outbreaks,” and face coverings are required when employees return to work after having had COVID-19 or a “close contact.” Employers must ensure face coverings are used as required by any California Department of Public Health (CDPH) order, and employers should also note that a local public health order may separately impose face covering mandates.
The new ETS also require employers to provide employees face coverings, including respirators, upon request, notice of their policy and effective training and instruction regarding proper use of respirators. This requirement extends to all employees regardless of vaccination status.
When face coverings are required, the covering still must be two layers, be attached to the head, and fit snugly over the nose and mouth. Scarves, ski masks, balaclavas, bandanas, turtlenecks, collars, or single layers of fabric are not sufficient. However, the new ETS deletes the requirement that face coverings “do not let light pass through when held up to a light source.”
Employers may still require face coverings in the workplace subject to any accommodations mandated by law. Even when not required, employees must be allowed to wear face coverings if they choose.
Updated Exclusion And Return To Work Requirements
The current ETS update the rules on exclusion and return to work for “COVID-19 cases” and “close contacts” of COVID-19 cases. In general, the updates align with current CDPH guidelines on Isolation and Quarantine (April 6, 2022). The revised ETS advise employers, in accordance with Executive Order N-84-20, that if the ETS has a longer exclusion period than the CDPH requires, the public health guidance applies.
Cal/OSHA has provided a chart outlining the current rules as to when employee exclusion is required and when return to work is allowed in the “CDPH Isolation and Quarantine” section of its FAQ here. Vaccination status is now irrelevant and, while employees may be excluded from the workplace for less than the typical ten-day period in specified circumstances, employees must wear a face covering around others for the entire ten-day period.
“COVID-19 Cases”
All employees who are positive for COVID-19 (“COVID-19 Cases”), regardless of vaccination status, must be excluded from the workplace until they meet the specified return to work criteria. The revised ETS “return to work” section at 3205(c)(10) now reflects the April 6, 2022 CDPH isolation and quarantine guidance for COVID-19 positive cases which is described in Table 1 of the “CDPH Isolation and Quarantine” section of the ETS FAQ.
“Close Contacts”
The current ETS delete the previous detailed requirements for exclusion and return to work for “close contacts.” Now, employers are instructed to review current CDPH guidance on isolation and quarantine, and to implement quarantine and other measures to prevent transmission of COVID-19 in the workplace. Current guidelines are described in Table 2[1] of the “CDPH Isolation and Quarantine” section of the ETS FAQ. Notably, the ETS, and Cal/OSHA’s FAQ relating to “Addressing COVID-19 Cases in the Workplace,” continue Cal/OSHA’s definition of “close contact” that is narrower than that in current CDPH guidance.[2]
Maintenance of Pay and Benefits During Periods of Exclusion from Work
The ETS continue to require that employers maintain the earnings, wages, seniority, and benefits of employees who are excluded from work under the ETS rules, with limited exceptions for employees who are receiving disability or workers compensation payments or where the employer can demonstrate that the employee’s “close contact” to COVID-19 case was not work-related. As before, there is no cap on the amount of pay an employee can receive under this section of the ETS.
Although the current ETS are unchanged from the previous version with regard to employers’ obligation to maintain wages and benefits of employees excluded from work for COVID-19 reasons, employers should be aware that California’s 2022 COVID-19 Supplemental Paid Sick Leave (SPSL) law, enacted in February, 2022, specifically prohibits employers from requiring employees to exhaust 2022 SPSL prior to providing paid leave under the ETS. Nor may employers require the employee to use the standard paid sick leave mandated under California’s Paid Sick Leave law.
Changes to Testing Definition and Requirements
Previously, a COVID-19 test could not be both administered and read by the employee. Under the newly adopted ETS, self-administered and read tests are permissible if another independent verification of the results can be provided, e.g., a time stamped photo of results.
Now, regardless of vaccination status, employers must provide testing on paid time: (1) to all symptomatic employees (including “returned cases”[3]); (2) when following CDPH quarantine and isolation guidance to keep employees working or return them to work sooner; (3) to all “close contacts” (except for “returned cases”); and (4) to the “exposed group”[4] during a “COVID-19 Outbreak” or “Major COVID-19 Outbreak” (except for “returned cases”).
Changes to Employer-Provided Housing Requirements
Employers must provide face coverings to all residents and train them on when face coverings should be used consistent with CDPH or local health department orders or guidance. Specific COVID-19 cleaning and disinfecting requirements have been dropped. For COVID-19 and close contact cases, employers must effectively quarantine residents who had close contact, which must include a private bathroom and sleeping area. There are no longer any exceptions to this mandate.
Changes to Employer-Provided Vehicle Requirements
The requirements for employer-required vehicles remain in the new ETS with the following modifications:
The above highlights some of the most notable changes impacting California employers under the now in-effect Cal/OHSA ETS. Employers would be well served to review their COVID-19 Prevention Program and related policies, procedures, and practices to ensure compliance with the revised ETS, and ensure they are taking appropriate steps to prevent the spread of COVID-19 consistent with CDPH guidance. The lawyers at RJO are here to assist as you undertake this endeavor and navigate California’s unique COVID-19 prevention regulations and guidance.
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[1] Table 3 of the Isolation and Quarantine section relates to “high risk settings” which include emergency shelters and cooling and heating centers. The term also includes correctional facilities, long term care, and healthcare settings, but the FAQ note that those settings would typically be covered by the Aerosol Transmissible Disease standards, not the ETS.
[2] The ETS continue to use the more commonly understood definition of close contact to require close physical proximity (within six feet) for an extended period of time (15 minutes cumulative in a 24-hour period), without regard to whether the employee wore a face mask. Current CDPH guidance defines “close contact” as simply “sharing the same indoor space.” The new ETS provide that for the definitions of “infectious period” (which replaces the prior definition of “high risk exposure”) and “close contact,” the ETS definitions apply unless CDPH adopts a different definition “by regulation or order.” Currently, the definition of the infectious period under the ETS and CDPH guidance are aligned.
[3] The new ETS now define a “returned case” as a COVID-19 case who met the requirements to return to work under the ETS and did not develop any COVID-19 symptoms after returning. Under the ETS, a person is only considered a “returned case” for 90 days after the initial onset of COVID-19 symptoms or, if the person never developed COVID-19 symptoms, for 90 days after the first positive test. However, if a period of other than 90 days is required by a CDPH “regulation or order,” that period will apply.
[4] “Exposed group” means all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the infectious period.
