By Carol K. Shieh, Esq. and Rachel H. Khedouri, Esq.
Update: On January 5, 2022, the California Department of Public Health issued an updated guidance extending the universal indoor masking requirement through February 15, 2022.
As expressed in our prior eAlert on workplace COVID-19 guidelines, the rollercoaster had come to a temporary stop for California employees on June 17, 2021, with the first readoption of the amended California OSHA Standards Board’s Emergency Temporary Standards (“ETS”). Now, California employers need to re-buckle their seatbelts as the Board has announced the second readoption of amendments to the ETS, effective January 14, 2022, and expected to be in place for three months.
To comply with the new rules, employers must update their written COVID-19 Prevention Programs and practices to reflect the ETS amendments. Please note the following key changes:
1. Excluding Employees from the Workplace Due to Exposure to COVID-19
Contrary to the current rules allowing asymptomatic vaccinated employees to return to the office without restriction if they have been exposed to COVID-19, the new rules require these employees to be excluded from the workplace unless they wear a face covering and maintain six feet of distance from others for 14 days following the last date of close contact. Asymptomatic employees who previously had COVID-19 and returned to work do not need to be excluded from the workplace for 90 days after the initial onset of symptoms (or first test if they never developed symptoms) if they likewise comply with the face covering and social distance requirements for 14 days following the close contact. The employer must provide these employees with information about precautions recommended by the Department for persons who have been in close contact with someone with COVID-19.
Other asymptomatic employees who have had close contact may return to work after 14 days with the following exceptions: 10 days have passed and the person wears a face covering and maintains social distancing for 14 days, OR seven days have passed, the person tests negative at least five days after the last contact, and the person wears a face covering and maintains social distancing for 14 days.
2. Wearing Masks
The amended ETS expands the definition of “face covering” to mean a mask that does not let light pass through when held up to a light source, completely covers the mouth, nose, and chin, is a solid piece of material without slits or holes and fits snugly with no large gaps on the sides. The definition of face coverings was also amended to include those with a clear plastic panel that otherwise meet the definition and are used to facilitate communication with people who are deaf or hard of hearing or otherwise need to see a speaker’s mouth or facial expressions to understand speech or sign language. In addition, face coverings now must be worn by all employees during the process of workplace screenings, without regard to vaccination status. Further, the prior ETS provided that the employer was not obligated to provide a face covering to be worn in employer-provided transportation by the fully vaccinated employee. The amended ETS removes that exemption.
**As we recently advised, employers must follow the Guidance for the Use of Face Coverings (the “Guidance”) issued by the California Department of Public Health (the “Department”) putting in place a statewide universal mask mandate without regard to vaccination status. [CLICK HERE for our December 15, 2021 eAlert on the mask mandate]. The Department’s updated FAQs make clear that the Guidance applies to all workplaces, even those closed to the public, with an exemption for those consisting of a single employee or where an employee is working alone in a closed office or room. [CLICK HERE for the full text of the FAQs.] At this time, the Guidance is scheduled to sunset on February 15, 2022, unless extended (note, this date has been updated from our previous publish date of this Alert).
3. Testing for Employees
In a reversal of the current rules, the newly amended ETS requires employers to provide COVID-19 testing at no cost, during paid time, for all employees who have close contact in the workplace and all employees in the workplace during an outbreak, without regard to vaccination status. The definition of the “COVID-19 test” now excludes tests that are self-administered and self-read unless observed by the employer or authorized telehealth proctor.
4. Employer-Provided Housing and Transportation
COVID-19 prevention measures specific to employer-provided housing now apply even if all of the occupants are vaccinated. Further, employers must provide both unvaccinated and vaccinated employees with face coverings when utilizing employer-provided transportation.
5. General Provisions
Employers should keep in mind that the amendment did not affect significant provisions of prior versions of the ETS, and the new ETS does not preempt more stringent local regulations that may be in place. Though the ETS may normally only be amended and readopted twice, Governor Gavin Newsom issued an executive order on December 16, 2021, to permit a third readoption of the ETS, so long as the effective period does not extend beyond December 31, 2022. Relatedly, the federal vaccine mandate for private employers is back on (for now) and could impact the California OSHA ETS going forward. [CLICK HERE for our recent eAlert on the current status of the vaccine mandate]. We will keep you updated.
NFC is continuing to monitor and update you on this ever-changing area of law. Please feel free to reach out if you have any questions as to your COVID-19 related obligations to NFC West at sfode@nfclegal.com or 619.292.0515.