On April 21, 2022, California’s Occupational Safety and Health Standards Board met and approved its third re-adoption of the existing COVID-19 Emergency Temporary Standards (“ETS”), with revisions. Recall that the initial ETS went into effect on November 30, 2020. That initial ETS was subsequently readopted and revised on June 17, 2021, and again on January 14, 2022. This third revised ETS will remain in place through December 31, 2022, by Executive Order. After this third version expires, it is anticipated that Cal/OSHA will implement permanent COVID-19-related standards to replace the ETS.
A comparison draft of the revised ETS (compared to the second adoption) can be found here. The Department of Industrial Relations (“DIR”) also has posted revised FAQs to further explain the new revisions, which can be viewed here. For reference purposes and to identify the newest content added by Cal/OSHA, scroll to the bottom of the page to find footnotes listing all changes by date.
Important Note: Employers must continue to check their local health orders in their specific geographic regions to determine if stricter local standards apply to their workplace.
We have addressed below only a few of the most important changes in the third adoption of Cal/OSHA’s ETS:
The revised ETS explicitly states that, “… Executive Order N-84-20 … in certain circumstances, replaces, for the duration of the Executive Order, the exclusion periods and requirements of this Emergency Temporary Standard with the California Department of Public Health’s (CDPH) isolation and quarantine periods and requirements.”
This means that so long as Executive Order N-84-20 remains in effect, the operative standard that employers must follow for isolation and quarantine standards comes from the CDPH and not from Cal/OSHA. The CDPH guidance can be viewed here. Again, be sure to check your local health orders, which may be stricter than the CDPH standards.
This revised version of the ETS also makes clear that the CDPH guidelines (see the link above) will govern the determination of the need for “close contact” exclusions from the workplace.
In its latest revision, Cal/OSHA has removed several former staples from the ETS. First, the term “fully vaccinated” has been completely removed from the ETS. This means that once this version of the ETS is effective, its provisions will apply to all employees regardless of their vaccination status. For example, an employer will be required to offer COVID-19 testing to all employees exhibiting COVID-19 symptoms regardless of vaccination status. Similarly, a respirator would need to be provided to all requesting employees regardless of their vaccination status. Notably, the CDPH quarantine and isolation standards still reference vaccination status, so be certain to review those requirements carefully.
Second, this ETS revision removes the former requirement that a return to work COVID-19 test, “May not be both self-administered and self-read unless the testing is observed by the employer or an authorized telehealth proctor.” The revised ETS states instead, “To meet the return to work criteria … a COVID-19 test may be both self-administered and self-read only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).”
As a practical matter, this means that employers can now allow employees to use over-the-counter COVID-19 tests and the testing process (including the collecting of the test specimen) need not be observed in real time by the employer or another authorized proctor, so long as the employee can provide result verification. This guidance also aligns the Cal/OSHA standard with the Division of Labor Standard Enforcement California Supplemental Paid Sick Leave guidance here (see FAQ 21).
Third, the definition of “COVID-19 hazard” no longer includes the former ETS language that referenced “objects or surfaces that may be contaminated with SARS-CoV-2." The revised ETS also removed the former requirements for cleaning and disinfecting procedures related to COVID-19, including the former requirement of “Cleaning of areas, material, and equipment used by a COVID-19 case during the high-risk exposure period, and disinfection if the area, material, or equipment is indoors and will be used by another employee within 24 hours of the COVID-19 case.” Notably, in outbreak situations, cleanable solid partitions also are no longer required even if social distancing cannot be maintained.
The revised definition of “face coverings” removes the requirement that a face covering must “not let light pass through when held up to a light source” (the “light test”). Regardless, if face coverings are required in an employment setting, employers must still 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.
The revised ETS adds a new section on returned cases. A “‘returned case’ means a COVID-19 case who returned to work and did not develop any COVID-19 symptoms after returning. A person shall only be 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. If a period of other than 90 days is required by a CDPH regulation or order, that period shall apply.” Notably, an employer is not required to make COVID-19 testing available to returned cases in a workplace COVID-19 exposure situation.
This is not the end, unfortunately. As noted above, on December 16, 2021, Governor Newsom issued an Executive Order permitting this third re-adoption of the ETS for a period not to extend beyond December 31, 2022. We expect federal OSHA ETS and Cal/OSHA to issue permanent COVID-19 standards in the future.
For further information regarding COVID-19 questions or other employment law issues, contact the attorneys at LightGabler.