Not Done Yet: Cal/OSHA Approves Further Revisions To Its Emergency Temporary Standards

Today, the Cal/OSHA Occupational Safety and Health Standards Board voted to approve the third readoption of the COVID-19 Emergency Temporary Standards (“ETS”). The new standards become effective on May 6, 2022, when the current ETS expires and will be effective through at least December 31, 2022.  If the standards remain unmodified by executive order, which has happened before,  the new ETS makes some significant changes to the current version of the ETS.  We discuss each of those changes in turn below.  Employers should look to update their COVID-19 prevention plans to maintain compliance with these new standards.

Vaccination Status No Longer Relevant In Some Cases.  Surprisingly, the new ETS removes the definition of fully vaccinated.  Effectively this means that certain portions of the ETS will apply to every employee regardless of their vaccination status.  For instance, every employee will be entitled to request a respirator (like an N95 mask) for voluntary use and employers will now have to offer COVID-19 testing to all employees exhibiting symptoms of COVID-19 (with the exception of “Returned Cases” see below).  Previously, only unvaccinated employees were able to request respirators and had to be offered testing.  This begs the question, what about exclusion requirements? Do all employee now have to be excluded after a close contact? The short answer is no.  Which leads us to the next significant revision.

The New ETS Defers To The California Department Of Public Health For Exclusion Requirements, But Only For Employees In Close Contact.  While the old ETS had detailed requirements on who had to be excluded from the workplace, the new ETS has shifted all that responsibility to the CDPH.  The ETS now requires that employers “review current [California Department of Public Health] guidance” regarding “quarantine or other measures to reduce transmission,” to “develop, implement, and maintain effective policies” to prevent COVID-19 transmission from close contacts. Even the definition of “close contact” is now subject to change by CDPH “regulation or order.”  While this provides employers with more flexibility it also means that the standards can be changed more swiftly by the CDPH.  Employers should remain vigilant to stay on top of any revisions to CDPH’s isolation and quarantine guidance.  Additionally, while the new ETS defers to CDPH on most of the exclusion requirements it leaves in the exclusion pay requirement for employees with a work-related exposure. 

Finally, and perhaps most importantly, the deference to the CDPH standards only applies to employees who have been exposed to COVID-19.  Employees who constitute a COVID-19 Case (i.e. tested positive, ordered to isolate. . .) or are excluded in the context of an outbreak or employer provided housing cannot return to work until the requirements of the ETS are met.  As if that wasn’t enough, the new ETS also lays out updated return to work requirements for these employees. Those requirements apply regardless of the employee’s vaccination or previous infection status and are:

If the employee does not develop symptoms or symptoms are resolving, they cannot return until:

1. 1. 1. At lease five days have passed since the date symptoms began or from the date of the first positive test;
      2. At least 24 hours have passed since a having a fever of 100.4 or higher without the use of fever reducing medication; and
      3. A negative test collected on the fifth day or later comes back negative.  If a test is not obtained or comes back positive the employee cannot return until 10 days have passed.

If the employee’s symptoms are not resolving, they cannot return until:

1. 1. 1. At least 24 hours have passed since a having a fever of 100.4 or higher without the use of fever reducing medication; and
      2. Symptoms are resolving or 10 days have passed from when the symptoms began.

These employees must also wear a face covering in the workplace until 10 days have passed since symptom onset or if they did not have symptoms since the date of their first positive test.  Additionally, these requirements apply regardless of whether the employee was previously excluded under the CDPH guidelines.  Effectively, this means that if an employee was excluded due to a close contact under the CDPH guidelines, they will still be subject to the guidelines above if they later test positive.  It is unclear why Cal/OSHA determined that two separate standard was the best way forward, however, Employers should be aware of these standards and apply them accordingly.

Tests No Longer Have to Be Monitored. Except for purposes of return to work, the new ETS no longer restricts the types of COVID-19 tests that can be used to identify COVID-19 cases or otherwise be made available to employees when required, including during outbreaks. Additionally, the restriction prohibiting use of self-administered and self-read tests applies only to return-to-work criteria unless “another means of independent verification can be provided,” such as a time-stamped photograph of the test results presumably taken by the employee.   

Reduced Cleaning Obligations.  The new ETS removed surfaces and objects potentially contaminated with SARS-CoV-2 from the definition of “COVID-19 Hazard.” Additionally, the new ETS removes all cleaning and disinfection requirements, including the requirement to clean an area used by a COVID-19 case.  This should ease the burden on employers who have been spending significant time and money sanitizing the workplace.

Addition of “Returned Case” Definition.  The new ETS adds the term “Returned Case” to the definitions section.  A Returned Case is an employee who returned to work after testing positive and did not develop symptoms after returning.  This person is considered a Returned case for 90 days after the initial onset of symptoms, or if neve had symptoms 90 days after their positive test.  Returned cases do not need to be provided with a test after a close contact.

High Risk Exposure Period Now Defined as “Infectious Period.” The requirements remain the same, however, the new definition includes a caveat that the requirements may change if otherwise defined by CDPH regulation or order.  For now, the Infectious Period is 2 days before the onset of symptoms until 10 days after symptoms began, 24 hours have passed since no fever without fever reducing medication, and symptoms are resolving.  If the employee is asymptomatic, the Infectious Period is 2 days before the positive test until 10 days after.

No More Light Test. The requirement that face coverings not allow light to pass through has been removed.  This is a welcome revision as Cal/OSHA never published FAQs explaining this confusing requirement.

No More Partitions During Outbreaks. The minor and major outbreak provisions of the new ETS no longer require consideration or use of cleanable solid partitions whenever social distancing cannot be maintained.

Many of these changes are minor, however, they can significantly impact how you operate your business.  Employers should look to update their COVID-19 protocols to ensure that they remain up to speed with the latest requirements.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying with the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.