California’s Occupational Safety and Health Standards Board has voted to readopt the existing COVID-19 Emergency Temporary Standards (“ETS”), with several critical revisions. As you may recall, the initial Cal/OSHA COVID-19 ETS went into effect on November 30, 2020, and were first revised and readopted on June 17, 2021. This is the second revision and re-adoption of the ETS.
The revised ETS will go into effect on January 14, 2022 and will remain in place until April 14, 2022. A comparison draft of the revised ETS can be found here. The Department of Industrial Relations (“DIR”) also published revised FAQs to further explain the revisions; these FAQs can be viewed here (to quickly identify the newest content, check out the footnotes at the very bottom of the webpage).
Important changes in the revised ETS are summarized below.
Although the revised ETS changed the quarantine/isolation and workplace safety rules for employees after “close contact” with a COVID-19 positive person, some of these rules have already been superseded by shorter isolation/quarantine recommendations issued by the California Department of Public Health (CDPH) and local health authorities.
Specifically, Governor Newsom issued an Executive Order on December 14, 2020 that allows the shorter quarantine/isolation periods recommended by the CDPH or a local health officer to supersede longer exclusion periods in the Cal/OSHA ETS. Cal/OSHA recently updated its FAQs on COVID-19 Prevention ETS to incorporate this new guidance from CDPH on isolation and quarantine periods, as well as the masking and testing requirements for employees to safely return to work after a COVID-19 positive test result or known COVID-19 exposure. The updated FAQs with the new quarantine/isolation periods adopted by Cal/OSHA can be found here (scroll to the section titled “CDPH Isolation and Quarantine”).
Note that Cal/OSHA’s adoption of the shorter quarantine periods recommended by the CDPH and local health authorities means that employers will need to track whether employees are eligible for and/or have received booster shots when determining the exclusion period for employees exposed to COVID-19. For more information on the CDPH guidance, see our recent legal update here.
A new definition of “face coverings” means that many of the masks currently worn by employees in the workplace may no longer meet the revised Cal/OSHA standards. Specifically, the revised ETS state that the minimum two layers of fabric in a mask must “not let light pass through when held up to a light source.” Exceptions are made for clear plastic panels in masks used to aid in communication for those with hearing or other disabilities. In addition, the revised rules require that employers must ensure that masks “fit snugly over the nose, mouth and chin with no large gaps on the outside of the face” and must “completely cover the nose and mouth” with “no slits, visible holes, or punctures” in the mask material.
Employers must continue to check the local health orders in their geographic region to determine if stricter mask standards apply to their workplace. As an example, Los Angeles County recently enacted a more strict masking order which requires employers to provide well-fitting medical-grade surgical masks or respirators (e.g., N95 or KN95 masks), and ensure that these more protective face coverings are worn by all employees “who work indoors and in close contact with other workers or the public . . . at all times while indoors at the worksite or facility.” A copy of the Los Angeles County Health Order (page 9 is the relevant section) can be found here.
For those employees unable to wear a mask due to a disability, or who are hearing-impaired or communicating with a hearing-impaired person, the prior ETS required that these employees wear an effective non-restrictive alternative, such as a face shield with a drape at the bottom.
For those employees whose disability or condition does not allow a face shield with a drape or another effective non-restrictive alternative, the revised ETS now require those employees to:
Employers must now make COVID-19 testing available to any employee who is in “close contact” with an infected employee at the workplace and during an outbreak, regardless of vaccination status. In the previous version of the ETS, employers were not required to offer COVID-19 testing to fully vaccinated employees after close contact or during an outbreak.
In addition, in order to return employees to work after a COVID-19 positive test result or known “close contact” with a COVID-19 positive individual under the shorter quarantine/isolation rules recommended by CDPH, employers will need to follow the updated testing requirements set out in the Cal/OSHA FAQs for all employees.
The revised ETS adopt a different definition of “fully vaccinated.” The new guidelines include employees who were vaccinated with two different manufacturer vaccines (“mix and match” vaccines), so long as both vaccines were approved and/or authorized for emergency use by the FDA and the second dose of vaccine was received no earlier than 17 days after the first dose.
The revised rules also require that any employee taking a two-dose vaccination regimen must wait at least the recommended interval between doses to qualify as “fully vaccinated.”
Finally, the revised rules also allow employees who had their vaccine administered as part of a clinical trial to be considered “fully vaccinated” under certain circumstances.
Note that the Cal/OSHA definition of “fully vaccinated” does not address booster shots. However, employers must determine booster shot eligibility and status when returning asymptomatic employees to work under the shorter quarantine periods recommended by CDPH after “close contact” to a COVID-19 positive case.
The revised ETS provide further guidance about COVID-19 tests that will satisfy Cal/OSHA testing requirements, including tests where specimens may be collected at home under certain conditions. Under the revised ETS, COVID-19 tests:
Examples of allowable tests include: (i) proctored over-the-counter tests; (ii) tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens); and (iii) tests where specimen collection and processing is either done or observed by the employer.
For employees to return to work after testing on day five or later after a COVID-19 positive test result or after known “close contact” to a COVID-19 positive case, Cal/OSHA recommends use of an antigen test.
Although the revised ETS did not revoke the rule that allows fully vaccinated employees to go without a mask in the workplace, the California Department of Public Health recently issued a universal statewide indoor mask mandate that extends until February 15, 2022. This means that from now until February 15, 2022, employers in California need to require universal indoor masking at their workplaces, regardless of vaccination status. The January 5, 2022 statewide mask mandate can be found here.
In addition, local jurisdictions (including Los Angeles and Ventura counties) previously issued mask mandates that apply irrespective of vaccination status. Employers must follow the most protective set of restrictions governing the workplace, and will need to check all applicable federal, state and local guidelines before allowing vaccinated employees to go without masks once the statewide indoor mask mandate expires.
The revised ETS are clear that the testing cannot be self-administered and self-read unless the testing process is observed by the employer or an authorized telehealth proctor. As a practical matter, this means that employers cannot allow employees to use an over-the-counter rapid COVID-19 test unless the testing process (including the collecting of the test specimen) is observed in real time by the employer or an authorized proctor who can ensure the identity of the test taker and the integrity of the test result.
Given the room for employee error in specimen collection, and the privacy rights implicated through an employer-observed testing process, we continue to recommend that employers require employees to utilize a licensed health care professional to test for COVID-19 when testing is advisable or required under applicable law.
In order to know which quarantine rules apply to asymptomatic employees with known “close contact” to a COVID-19 positive individual, employers will need to know whether the employee is eligible for and/or has received a booster shot. The CDPH changed its website recently to recommend that the public refer to the CDC to determine eligibility for booster shots. The CDC guidance for booster eligibility can be found here.
Notably, employees who are fully vaccinated but who have not yet received a booster shot despite being eligible to do so are considered the same as unvaccinated employees for the purposes of the updated Cal/OSHA quarantine rules after COVID-19 exposure.
This isn’t the end. On December 16, 2021, Governor Newsom issued an Executive Order permitting a third (and future) re-adoption of the ETS, so long as the effective period does not extend beyond December 31, 2022.
Given the evolving conditions resulting from COVID-19 variants and the federal OSHA ETS, we expect that Cal/OSHA will not be issuing permanent COVID-19 standards anytime soon, but will instead revise and readopt the ETS for a third time in the spring of 2022.
For further information regarding COVID-19 questions or other employment law issues, contact the attorneys at LightGabler.