By Rachel H. Khedouri , Esq. and Carol Shieh, Esq.
For the third time since originally issuing its Emergency Temporary Standards (“ETS”) on November 30, 2020, the Standards Board of California’s Division of Occupational Safety and Health (“Cal/OSHA”) has announced the re-adoption of the ETS with substantive amendments. [See our June 21, 2021, and December 21, 2021 eAlerts for further detail on the previous re-adoptions.] The new COVID-19 workplace requirements are effective May 6, 2022, through December 31, 2022, the latest date permitted under Governor Newsom’s Executive Order allowing for this third re-adoption of the ETS.
Employers should take steps as soon as possible to update their written COVID-19 Prevention Programs and practices in accordance with the new requirements. Cal/OSHA has issued FAQS itemizing the May 6 revisions, making clear that the ETS requirements no longer vary based on employee vaccination status – all protections apply to all employees. Some of the other more salient changes include:
1. Wearing Masks
The re-adoption removes the requirement that unvaccinated employees must wear face coverings indoors regardless of exposure or infection – mask requirements now are the same for all employees whether or not vaccinated. Employers must continue to provide masks and respirators upon request (for employees who work indoors or in vehicles with others) and to allow employees who so choose to use masks in the workplace without fear of retaliation.
The ETS now defers to the California Department of Public Health (“CDPH”) to determine when masks are required to be worn in the workplace; as of the date of this eAlert, current CDPH guidelines “strongly recommend” but do not require masking, with a limited exception for certain healthcare and correctional facilities and shelters. Employers must train employees on CDPH and local health department recommendations and on their company’s policies regarding face coverings.
2. Testing for Employees
Employers now must provide testing for all employees – regardless of vaccination status – who exhibit COVID-19 symptoms. The rule previously covered only unvaccinated employees. Employers also must provide COVID-19 testing for employees who had close contact in the workplace, during outbreaks, and during major outbreaks.
The ETS also revised the rule regarding testing to return to work. Such tests may now be both self-administered and self-read without requiring a video or observation of the entire test process. Employees will be required to show a date/time-stamped photo of the result as confirmation.
3. Exclusion from the Workplace
Another notable change is that Cal/OSHA revised how it defines “close contact” to allow for consistency with any changes CDPH may make in its rules, and directs employers to the most recent CDPH guidance for isolation and quarantine to determine when employees may return to the workplace after exposure or illness. In accordance with those guidelines, an employer can now allow any employee who tests positive for COVID-19 to return to work after five days if they have a negative test, symptoms are improving, and they wear a mask at work for an additional five days; the re-adoption eliminates previously allowed exceptions based on vaccination status, previous infection, and testing negative on Day 5 or later. The ETS provides that most other employees can return after 10 days.
4. Cleaning and Distancing Protocols
Under the ETS as newly amended, employers are no longer required to follow cleaning and disinfecting protocols, including prior requirements for cleaning an area used by an employee with COVID-19. Employers also no longer need to consider the use of barriers or partitions during outbreaks in the workplace, but certain physical distancing requirements may still apply. In the absence of an outbreak, employers should continue to assess workplace hazards and consider whether physical distancing is necessary in a particular case to prevent the transmission of COVID-19.
What remains the same? The most recent amendment retains certain key provisions of the ETS as in effect from the original issue on November 30, 2020, or as revised by the prior amendments, including:
- Employers must still maintain effective written COVID-19 Prevention Programs and train employees on prevention plans and employee rights under the ETS;
- Employers must provide notification to public health departments of outbreaks;
- Employers must provide written notice within one business day to all employees and others who were at the same worksite as a positive COVID-19 case during a set time frame (now the “infectious period” as defined by CDPH); and
- Employers must offer free testing during paid time for employees after potential exposure in the workplace.
Finally, employers should be mindful that more stringent local regulations continue to apply; companies should check the status of COVID-19 workplace regulations in their city and/or county
NFC regularly monitors and updates you on changes to employers’ COVID-19-related obligations. If you have any questions on the requirements of the latest iteration of the Cal/OSHA ETS or any other employment law issue, please feel free to reach out to NFC West at sfode@nfclegal.com or 619.292.0515.