On December 16, 2021, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) voted to adopt revisions to the COVID-19 Prevention Emergency Temporary Standards (“ETS”) that reflect the latest recommendations from the California Department of Public Health (“CDPH”). The revisions will take effect on January 14, 2022, and include the following:
Face Coverings
The definition was revised to provide more detail on the different types of acceptable face coverings, including that any fabric face coverings worn may not allow light to pass through when held up to a light source and that face coverings must completely cover the nose and mouth and be secured to the head.
COVID-19 Tests
The definition of a “COVID-19 test” was updated to exclude tests that are both self-administered and self-read, unless observed by the employer or a telehealth proctor. As a result, self-administered tests done at home cannot be used to satisfy expedited return to work requirements for employees after a close contact exposure.
Investigating and Responding to COVID-19 Cases in the Workplace
Employers must continue to properly notify employees, employee representatives and any other workers at a worksite of possible COVID-19 exposures within one business day. The revisions provide employers with more clear instructions on how to notify workers who were at the same worksite as the COVID-19 case during the high-risk exposure period.
Testing and Exclusion
Provisions of the ETS related to testing and workplace exclusions were revised to be consistent with current CDPH recommendations:
- Employers are now required to make COVID-19 testing available at no cost and during paid time to all employees, regardless of their vaccination status, who have “close contact” with a COVID-19 case at work. The only exception to the free testing requirement is for employees who recently recovered from COVID-19.
- During outbreaks and major outbreaks, employers must now make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available to asymptomatic fully vaccinated employees, as well as unvaccinated employees, in the exposed group.
- Under the current ETS, employers are not required to exclude employees who have recently recovered from COVID-19 or who are fully vaccinated from the workplace after a “close contact” exposure, provided they do not develop symptoms. The revised ETS mandates that, if these employees are permitted to remain in the workplace, they must wear a face covering and maintain six feet of physical distancing for 14 calendar days following the last date of contact.
Return to Work Criteria
The period of time before an employee can return to work following a close contact or COVID-19 infection has been revised to be consistent with current CDPH guidelines. These time frames will automatically update if CDPH updates their guidelines pursuant to the Governor’s Executive Order N-84-20.
The updated ETS reinstates the 14-day quarantine period for unvaccinated employees who do not develop symptoms, unless the following exceptions apply:
- 10 days have passed since the close contact and the employee wears a face covering and maintains six feet of distance while at the workplace for 14 days following the close contact; or
- 7 days have passed since the close contact and the employee tested negative for COVID-19 with a specimen taken at least five days after the close contact and the employee wears a face covering and maintains six feet of distance while at the workplace for 14 days following the close contact.
The revised ETS also removes the option for unvaccinated employees who develop symptoms to be eligible to return to work 10 days after a close contact exposure if they test negative for COVID-19. This means unvaccinated employees who are symptomatic now cannot return to work until the following criteria is met:
- At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medications;
- COVID-19 symptoms have improved; and
- At least 10 days have passed since COVID-19 symptoms first appeared.
The updated ETS also eliminates the option for employers in the health care and emergency response sectors to allow unvaccinated employees who have a close contact exposure to return to the workplace early if there is a critical staffing shortage.
As employers begin to revise their COVID-19 protocols, it is important to remember that other key requirements of the ETS remain unchanged, including that employers must continue to maintain COVID-19 Prevention Programs. Cal/OSHA is updating its resources to assist employers with understanding their obligations required by the revised ETS and has provided an updated fact sheet. Updated FAQs will be published when the revised emergency temporary standards become effective.
OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.