On December 16, 2021, the California Occupational Safety & Health Standards (Cal/OSHA) Board voted to re-adopt its COVID-19 prevention emergency temporary standards (ETS) incorporating changes Cal/OSHA posted in preparation of its business meeting on December 16, 2021. If approved by the Office of Administrative Law (which is expected), the revised ETS will take effect on January 14, 2022 and will expire on April 14, 2022.
The revised ETS (which will make changes to the California Labor Code Sections 3205 through 3205.4) do not impose protections or requirements as strong as the federal OSHA ETS and do not require employees to be vaccinated or tested weekly, except in certain circumstances. The Deputy Chief explained that the revisions were made to more closely align the ETS with guidelines from the U.S. Centers of Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH), to address concerns related to the Omicron variant, and to make the ETS requirements easier for employers to implement.
The notable revisions to the ETS are summarized below.
- Definitions: The revised ETS include several changes to definitions articulated in the current ETS. For example, “COVID-19,” or Coronavirus Disease 2019, will be defined as “the disease caused by SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2).” The other relevant changes to the definitions are below:
- “COVID-19 test.” The revised ETS define a “COVID-19 test” as a test for SARS-CoV-2 that is: (1) approved by the Food and Drug Administration (FDA), including under emergency use authorization (EUA) status, to identify current infections; (2) administered according to the corresponding and authorized instructions; and (3) “not both self-administered and self-read” unless the test is observed by the employer or an authorized proctor. The definition also provides some examples of tests that will qualify under this standard.
- “Face covering.” In the definition of “face covering,” the revised ETS clarify that “tightly woven fabric or non-woven material of at least two layers” means light cannot pass through the fabric if held up to light, and the definition includes other requirements about the face covering’s fit to the employee’s face (e.g., face covering must be secured with “ties, ear loops, or elastic bands,” gaiters must be at least two layers thick, face coverings must “fit snuggly,” etc.). In addition, the revised definition includes guidance that clear face coverings can be compliant if they otherwise meet the terms of the definition even though light can pass through them, and these clear face coverings can be used to facilitate communication with individuals that are deaf or otherwise hearing impaired.
- “Fully vaccinated.” The revised ETS define “fully vaccinated” to mean that “the employer has documented” (1) an employee’s status two weeks after being vaccinated by a vaccine approved for emergency use by the FDA or the World Health Organization (WHO) or “administered as part of a clinical trial at a U.S. site” when the employee received the active vaccine and its efficacy has been confirmed by an independent board or the vaccine is approved by the WHO for emergency use; or (2) an employee’s status two weeks after receiving the second dose in any two-dose COVID-19 vaccine series approved by the FDA or the WHO as long as the second dose is received at least 17 days after the first dose.
- “Worksite.” The revised ETS clarify that a “worksite” does not include places where the worker was alone (i.e., not exposing other employees) or to “a worker’s personal residence or alternative work location chosen by the worker when working remotely.”
- Screening: If screening occurs indoors, face coverings must be worn by the screeners and the employees regardless of vaccination status.
- Notice to employees of a COVID-19 case at the place of employment:
- When providing notice to employees that there may have been an exposure to COVID-19, the employer must use the manner it “normally uses to communicate employment-related information.” The notice must include the cleaning and disinfecting plan and must be sent to all employees, independent contractors, or other employers “who were on the premises at the same worksite as the COVID-19 case during the high exposure period.”
- The changes to this section also clarify that the applicable notice of potential exposure must be given to: (1) the authorized representative (if any) of the COVID-19 case and of any employee who had a close contact; and (2) to the authorized representative, if any, of any employee who was on the premises at the same worksite as the COVID-19 case during the high-risk exposure period.
- When there has been a COVID-19 case at the place of employment, the employer will now have to make COVID-19 testing available to employees regardless of vaccination status. There is still an exception for employees that have returned to the office pursuant to Section 3205(c)(10)(A) (i.e., no fever for 24 hours, COVID-19 symptoms improved, at least 10 days passed since COVID-19 symptoms first appeared) or under Section 3205(c)(10)(B) (i.e., tested positive but never developed COVID-19 symptoms), and remain symptom-free for 90 days or never developed symptoms for 90 days after their first positive test.
- When there have been COVID-19 outbreaks (i.e., three or more employee COVID-19 cases within an exposed group during a 14-day period) or major COVID-19 outbreaks (i.e., 20 or more employee COVID-19 cases in an exposed group within a 30-day period) at the workplace, the employer will now have to make COVID-19 testing available to employees at no cost to the employee during the employee’s paid time, regardless of vaccination status. For major outbreaks, the employer is required to provide testing twice a week or more frequently if recommended by the local health department.
- The following exceptions continue to apply for outbreaks and major outbreaks:
- Employees who were not present at the workplace during the relevant 14-day period(s).
- COVID-19 cases that have returned to the office pursuant to Sections 3205 (A) or (B) as summarized above.
- Face coverings and social distancing: Employees that are exempt from wearing a face covering (and their condition or disability prevents them from wearing a non-restrictive alternative face covering) due to a medical condition, disability, or who are hearing impaired or communicating with a hearing-impaired person are required to social distance (i.e., maintain 6 feet of separation) and either be fully vaccinated or tested weekly, at no cost to the employee, during paid time. Similarly, employees that are exempt because their position requires them to perform tasks which cannot be completed while wearing a face covering must social distance from all other persons unless the employee is fully vaccinated or tested weekly for COVID-19 paid for by the employer during paid time.
- Exclusions from the workplace: Employers are still required to exclude employees that have had a close contact subject to certain exceptions, but there are some changes to the exception criteria: For COVID-19 cases who returned to work under criteria 3205(c)(10)(A) or (B) (see above), these employees will not need to be excluded if they never developed symptoms for the first 90 days following the onset of their symptoms or positive test, respectively. In addition, employers will still not be required to exclude fully vaccinated employees; however, these exceptions only apply if the otherwise excluded employee social distances and wears a face covering for two weeks following their close contact.
If an employer decides not to exclude an employee under the revised exceptions, the employer will be required to provide the employee with information about applicable precautions recommended by the CDPH for persons with close contacts.
- Return to work: Persons with a close contact but who have not developed symptoms will now return to work after 14 days have passed since the close contact, unless 10 days have passed since the last known close contact and the person wears a face covering and social distances for 14 days after the close contact, or 7 days have passed since the close contact, the person tested negative for COVID-19 through a COVID-19 test taken at least 5 days after the close contact, and the person wears a face covering and social distances for 14 days after the close contact.
In addition, individuals with a close contact that develop symptoms will only return to work after at least 24 hours have passed since a fever of 100.4 degrees broke without medication, COVID-19 symptoms have improved, and at least 10 days have passed since the onset of symptoms without exception. The revisions also remove the guidance related to critical staffing shortages.
The revised ETS also include changes to the requirements for Employer-Provided Housing (§ 3205.3) and Employer-Provided Transportation (§ 3205.4). These changes primarily relate to testing and face covering requirements, as well as revisions to the exceptions for fully vaccinated employees in those sections.
Cal/OSHA has issued an updated Summary Guidance and is expected to release much-needed and updated FAQs that address the revised ETS and concerns brought up during the public comment period. Employers should review the revised ETS to ensure compliance.
Faegre Drinker will continue to monitor and provide insights with respect to Cal/OSHA’s revised ETS as well as other COVID-19-related topics. Insights will be updated on the firm’s COVID-19 Resource Center.