On April 21, 2022, the California Occupational Safety & Health Standards (Cal/OSHA) Board voted to readopt its COVID-19 prevention emergency temporary standards (ETS) incorporating changes Cal/OSHA posted in preparation of its business meeting on April 21, 2022. If approved by the Office of Administrative Law (which is expected), the revised ETS will become effective upon filing by the Office of Administrative Law with the Secretary of State. This is the third readoption of the ETS, which was authorized by Gov. Gavin Newsom’s Executive Order and will be in place until December 31, 2022.
The third revised ETS (which will make changes to California Labor Code Sections 3205 through 3205.4) will further require and clarify that guidance from the California Department of Public Health (CDPH) is controlling. In addition, these revisions mean that many of the benefits like testing and requesting a respirator apply regardless of vaccination status under certain circumstances.
The notable changes in the third revised ETS are provided below.
- Definitions: The third revised ETS has made several changes to certain definitions including:
- Close contact: The third revised ETS redefine “close contact” as “being within six feet of a COVID-19 case for a cumulative total of 15 minutes in any 24-hour period within or overlapping with the infectious period [see new definition below] regardless of the use of face coverings, unless the close contact is defined by regulation or order of the CDPH. If so, the CDPH definition shall apply.”
- COVID-19 hazard: The third revised ETS remove references to objects or surfaces that may be contaminated.
- COVID-19 test: For purposes of return to work “…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).”
- Face covering: The third revised ETS no longer require the fabric to pass the light test to qualify as a face covering.
- Infectious period: The third revised ETS added the term “infectious period,” which has the same meaning as “high risk exposure,” except that if the CDPH provides a different definition, the definition provided by the CDPH will control. References to “high risk exposure” are replaced with “infectious period.”
- Returned case: The third revised ETS define “returned case” as “a COVID-19 case who returned to work [after meeting the return to work criteria] 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 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.”
- The definition of “fully vaccinated” is removed.
- COVID-19 testing: As with the prior ETS, employers are required to make COVID-19 testing available at no cost and during paid time to all employees who had close contact, but employers are not required to make COVID-19 testing available to returned cases.
- Training and instruction: Employers are required to provide training on the employer’s policies for providing respirators to all employees regardless of vaccination status. Relatedly, employers must provide training on the conditions when face coverings must be worn in the workplace, with no obligation to provide training on the use of face masks outdoors.
- Face coverings: Employers are no longer required to independently provide face coverings or ensure they are worn by unvaccinated employees, but employers must continue to follow face covering orders issued by the CDPH. In addition, employees that are exempt from wearing a face covering and cannot tolerate a nonrestrictive alternative or cannot wear a face covering under another exception are no longer be required to socially distance or be vaccinated, but the employee must still be tested weekly at the expense of the employer during the employee’s paid time.
- Other engineering controls, administrative controls and personal protective equipment (PPE): The third revised ETS made several changes to controls and PPE including:
- Cleaning and disinfection: Cleaning and disinfecting procedures are no longer required meaning employers do not need to continue implementing procedures to identify and regularly clean frequently touched surfaces or other objects.
- Respirators: Upon request, employers will now be required to provide respirators for voluntary use to all employees regardless of vaccination status.
- COVID-19 testing: Employers are required to make COVID-19 testing available to all symptomatic employees regardless of vaccination status at no cost to the employee during the employee’s paid time.
- Exclusion of COVID-19 cases: Instead of providing independent criteria for exclusion, the third revised ETS explain that employers must review the current CDPH guidance related to quarantining of persons with a close contact and implement procedures to prevent transmission of COVID-19 by close contacts.
It is worth noting that employers are still required to provide exclusion leave benefits to employees during time that they are not permitted to be in the workplace.
- Return to work criteria: The third revised ETS provide updated return to work criteria which will apply to COVID-19 cases and employees excluded under multiple COVID infections and outbreaks (section 3205.1) and major outbreaks (section 3205.2). The criteria are similar but include some notable revisions.
- No symptoms or improvement: An employee, regardless of vaccination status or previous infection, that develops no symptoms or symptoms are improving, may return to work when: (1) at least five days have passed from the date when COVID-19 symptoms began or the date of the first positive test if there are no symptoms; (2) at least 24 hours have passed since a fever of at least 100.4 degrees Fahrenheit broke without a fever reducing medication; and (3) the employee tested negative on day five or later, or if the employer chooses not to require a test, 10 days have passed since the symptoms began or the employee tested positive.
- Symptoms with no improvement: An employee, regardless of vaccination status or previous infection, whose symptoms are not resolving, may return to work when: (1) at least 24 hours have passed since a fever of at least 100.4 degrees Fahrenheit broke without a fever reducing medication; and (2) symptoms are resolving, or 10 days have passed since symptoms started.
In addition, an employee regardless of vaccination status or previous infection will be required to wear a face covering until 10 days have passed since the symptoms began or the employee tested positive.
These requirements will apply regardless of whether the employee was previously excluded, or other precautions were taken to limit the employee’s close contact or membership in an exposed group.
- Multiple COVID-19 infections and COVID-19 outbreaks (section 3205.1): The third revised ETS changes include:
- COVID-19 testing for return to work employees: Employers are not required to provide COVID-19 testing to returned cases that did not develop symptoms after meeting the return to work criteria.
- COVID-19 testing for exposed employees: Employers must now make testing available to all employees in the exposed group regardless of vaccination status. In addition, employees with a close contact must test negative within three to five days of the close contact, or they must be excluded and follow the return-to-work criteria.
- Respirators: Employers must now give notice to all employees in the exposed group, regardless of vaccination status, of their right to request a respirator.
- Use of solid partitions and social distancing: Employers are no longer required to utilize cleanable solid partitions when social distancing is not possible. Instead, employers must evaluate whether to require social distancing or maintaining as much distance as feasible if a full six feet is impossible.
- Major COVID-19 Outbreaks (section 3205.2): The third revised ETS changes include:
- COVID-19 testing and return to work criteria: Employers must comply with the requirements for multiple COVID-19 outbreaks except that testing will be required for all employees in the exposed group, and employees in the exposed group will be required to follow the return to work criteria starting the date the outbreak begins.
- Use of solid partitions: Employers are no longer required to utilize cleanable solid partitions around the workstations of employees in the exposed group.
In addition to these revisions, there are also changes to employer-provided housing (§ 3205.3) related to face covering requirements, disinfecting procedures and exemption criteria for quarantining close contacts. Similarly, there are also changes to employer-provided transportation (§ 3205.4) including clarifying that the section applies to all employees regardless of vaccination status, face covering requirements and disinfecting procedures.
Cal/OSHA is expected to release an updated Fact Sheet and FAQs that will address the third revised ETS and concerns about implementing these regulations. Employers should review the third revised ETS to ensure compliance.
Faegre Drinker will continue to monitor and provide insights with respect to Cal/OSHA’s 3rd Revised ETS as well as other COVID-19-related topics. Insights will be updated on the firm’s COVID-19 Resource Center.