On April 21, 2022, the Occupational Safety and Health Standards Board (“Cal/OSHA”) voted to readopt a third revised version of its COVID-19 Prevention Emergency Temporary Standards (“ETS”). The second readoption of the ETS took effect on January 14, 2022, and expires on May 5, 2022, following an extension of its effective date on February 28, 2022, by California Governor Gavin Newsom’s Executive Order N-5-22.
If the Office of Administrative Law approves the third revised ETS, which it is expected to do this week, the third revised ETS will become effective when it is filed by the Office of Administrative Law with the Secretary of State and will remain in effect until December 21, 2022. The third revised ETS will introduce some significant revisions to the ETS of which California employers should be aware, including the return-to-work criteria and elimination of certain cleaning and social distancing requirements, as well as the creation of a “returned case” category of workers who have recovered from COVID-19.
Key revisions to the third revised ETS which will impact California employers are identified and summarized below.
Definitions
The third revised ETS includes changes to certain defined terms, including:
- Close contact. The term “close contact” is redefined 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” [previously, “high risk exposure period”] regardless of the use of face coverings, unless the close contact is defined by regulation or order the CDPH. If so, the CDPH definition shall apply.”
- Infectious period. As used in the third revised ETS, the term “infectious period,” has the same meaning as “high risk exposure,” except that should the CDPH provide a different definition, the definition provided by the CDPH will control. Throughout the third revised ETS, the term “infectious period” replaces references to “high risk exposure.”
- COVID-19 hazard. The third revised ETS removes the reference to objects or surfaces that may be contaminated from the definition of COVID-19 hazard.
- COVID-19 test. For purposes of returning to work, the third revised ETS allows for a COVID-19 test to be both self-administered and self-read, but 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 removes the requirement that face coverings must be made of fabric that does not let light pass through, and it also removes the indoor masking requirement for everyone.
- Fully vaccinated. The third revised ETS eliminates the defined term “fully vaccinated,” and all distinctions applicable to employees based on vaccination status are removed from the ETS.
- Returned case. The third revised ETS adds “returned case” as a new defined term that means “a COVID-19 case who returned to work [after meeting the criteria to return 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 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.”
COVID-19 Testing
While employers must continue to make COVID-19 testing available at no cost and during paid time to all employees who had close contact, employers are not required to make COVID-19 testing available to a “returned case.”
Training
In the third revised ETS, employers are required to provide training on the employer’s policies for providing respirators to all employees regardless of vaccination status. Employers must also provide employees with training on the conditions when face coverings must be worn in the workplace, but employers have no obligation to inform employees that the use of face coverings is recommended outdoors for those who are not fully vaccinated when social distancing is not possible.
Cleaning Procedures and Personal Protective Equipment (PPE)
- Under the third revised ETS, employers are no longer required to have cleaning and disinfecting procedures to identify and regularly clean frequently touched surfaces or other objects.
- Upon request, employers must provide respirators for voluntary use to all employees regardless of vaccination status.
- 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 and Employees Who Had Close Contact
While previous versions of the ETS included specific criteria for excluding employees from the workplace, the third revised ETS takes a different approach and requires that employers must review current CDPH guidance related to quarantining of persons with a close contact and to develop, implement, and maintain effective policies to prevent the transmission of COVID-19 by persons who had close contacts. Notably, employers are still required to provide exclusion leave benefits to employees during the time when they are not permitted to be in the workplace.
Face Coverings
In the third revised ETS, employers are no longer required to provide unvaccinated employees with face coverings or ensure face coverings are worn indoors by unvaccinated employees. Employers, however, must continue to follow face covering orders issued by CDPH and provide employees face coverings at no cost upon request, regardless of vaccination status. Additionally, if an employee is exempt from wearing a face covering and cannot tolerate a nonrestrictive alternative or cannot wear a face covering under another exception, the employee is no longer required to either 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.
Return to Work Criteria
The third revised ETS revises the criteria employers must use to determine when COVID-19 cases and employees are excluded from the workplace under multiple COVID-19 infections and outbreaks (section 3205.1) and major outbreaks (section 3205.2). Specifically, the return-to-work criteria for COVID-19 cases, regardless of an employee’s vaccination status or previous infection, are now as follows:
- No symptoms or resolving symptoms: If an employee has no COVID-19 symptoms or the symptoms are resolving, return to work may occur when:
- 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;
- at least 24 hours have passed since a fever of at least 100.4 degrees Fahrenheit broke without a fever reducing medication; and
- 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 not resolving: If an employee has symptoms that are not resolving, the employee may work when:
- at least 24 hours have passed since a fever of at least 100.4 degrees Fahrenheit broke without a fever reducing medication; and
- symptoms are resolving, or 10 days have passed since symptoms started.
Additionally, the third revised ETS requires that, regardless of vaccination status, previous infection or lack of COVID-19 symptoms, a COVID-19 case must wear a face covering in the workplace until 10 days have passed since the date that COVID-19 symptoms began or, if the person did not have COVID-19 symptoms, from the date of their first positive COVID-19 test. These requirements apply regardless of whether an employee has previously been excluded or other precautions were taken in response to an employee’s close contact or membership in an exposed group.
Multiple COVID-19 Infections and Outbreaks
The third revised ETS makes changes to the requirements when an employer is faced with multiple COVID-19 infections and outbreaks,[1] which include the following:
- COVID-19 testing.
- Employers are not required to provide COVID-19 testing to returned cases that did not develop symptoms after meeting the return-to-work criteria.
- Employers must make testing available to all employees in the exposed group, regardless of vaccination status.
- Employees who had close contacts must have a negative COVID-19 test taken between three and five days after the close contact or must be excluded and follow the return-to-work requirements starting from the date of the last known close contact.
- Physical partitions. When social distancing is not possible, cleanable solid partitions are no longer required. Employers, however, must evaluate whether to require social distancing or maintaining as much distance as feasible if a full six feet is impossible.
- Respirators. Employers are required to give notice to all employees in the exposed group of their right to request a respirator, regardless of their vaccination status.
Major COVID-19 Outbreaks
The third revised ETS also revises the requirements applicable in a major COVID-19 outbreak,[2] which include the following:
- COVID-19 testing. 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.
- Physical partitions. Cleanable solid partitions around the workstations of employees in the exposed group are no longer required.
In anticipation of the approval of the third revised ETS, California employers should review their COVID-19 Prevention Program and related practices and protocols and prepare to implement the necessary changes. Cal/OSHA is also expected to release an updated Fact Sheet and FAQs covering the third revised ETS.
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.
[1] Multiple COVID-19 infections and COVID-19 outbreaks means “three or more employee COVID-19 cases within an exposed group…visited the workplace during their infectious period at any time during a 14-day period.” (8 CCR § 3205.1(a).)
[2] A major COVID-19 outbreak occurs when “twenty or more employee COVID-19 cases within an exposed group…visited the workplace during their infectious period at any time during a 30-day period.” (8 CCR § 3205.2(a).)