The Latest from Cal/OSHA: New Updated Covid ETS, Effective 5/6/2022
- On 9 May 2022
- Posted by Chantal Mariotti
By Lisa van Krieken, Esq.; The Law Offices of Folger & Levin
As you likely have heard, the Cal/OSHA Safety and Health Standards Board has re-adopted, with revisions, the COVID-19 Prevention Emergency Temporary Standards (ETS). The updated ETS are substantially similar to the January 14, 2022 ETS, but there are some changes. Those include the following: (1) removing the distinction between vaccinated and unvaccinated employees; (2) no longer requiring face coverings except in specific circumstances; (3) aligning isolation and exclusion criteria with current California Department of Public Health (CDPH) guidance and requiring employers to stay up-to-date on future CDPH guidance; (4) allowing COVID tests to be self-administered and self-read; (5) requiring that employers disclose confidential medical information to certain agencies; and (6) removing certain cleaning and disinfection requirements.
Here is a more detailed discussion of those changes:
- Removing the Distinction Between Vaccinated and Unvaccinated Employees
Cal/OSHA has removed the definition of “fully vaccinated” from this version of the ETS, which means that the ETS does not distinguish between fully vaccinated, not-fully-vaccinated, and unvaccinated employees. As a result, employers now must offer: (a) testing to all symptomatic and exposed employees (at no cost to the employee and during paid working time) and (b) respirators (an N95 mask) for voluntary use to all employees upon request, regardless of vaccination status. However, note that while employers are generally required to provide testing to employees, this is not the case for employees who are now called “returned cases,” defined as employees with naturally conferred immunity, who have recovered from COVID-19 in the past 90 days and remain symptom free.
- Face Coverings are Generally No Longer Required
In the vast majority of circumstances, face coverings are no longer required while indoors or in vehicles for employees who are not fully vaccinated. Employers must still provide face coverings and will be required to ensure that employees wear face coverings if: (1) CDPH issues orders requiring them; (2) an employee has tested positive and is returning to work less than 10 days since their symptoms began or, if they never developed symptoms, less than 10 days since they tested positive ; or (3) for all indoor employees in an exposed group during a workplace outbreak or major outbreak, or when outdoors and less than 6 feet away from others. The definition of face coverings also has been updated to remove the requirement that they “not let light pass through when held up to a light source.”
- Isolation and Quarantine Periods are Now Aligned with Current CDPH Guidance and Employers Required to Stay Up-to-Date on Future CDPH Guidance
Isolation and quarantine periods are now aligned with current CDPH guidance and employers are directed to consult CDPH guidance regarding isolation and exclusion periods, which frequently changes. That guidance can be found here but should be monitored by employers for updates.
COVID-19 Cases: The new ETS is aligned with current CDPH guidance and requires employees who test positive for COVID-19 to stay home for at least five days from the onset of symptoms or, if they do not develop symptoms, five days from the date of their first positive test. The employee may then return to work if they test negative on the fifth day or later (which employers may require) and if at least 24 hours have passed without a fever and their other symptoms are resolving. If the employee is unable to test, the employee may not return to work until 10 full days have passed Employers must continue provide exclusion pay for the entire time the employee is isolated due to any work-related exposure.
Close Contacts: Employers are directed to review current CDPH guidance for close contact isolation and exclusion periods. As of May 6, 2022, CDPH guidance indicates that close contacts do not need to quarantine/be excluded from work so long as they have a negative test three to five days after exposure. While close contacts do not have to be excluded from work, the requirement that employers notify employees who had a close contact with a COVID-19 case during the “infectious period” still remains. (The new ETS now uses the term “infectious period” instead of “high-risk exposure period.”) Employers should continue to monitor CDPH guidance, as the definitions of both “infectious period” and “close contact” have been updated in the new ETS to align with any future CDPH orders or regulations that change those definitions.
Symptomatic Employees: The new ETS does not address how to treat employees with COVID-19 symptoms. However, current CDPH guidance encourages anyone with COVID-19 symptoms to self-isolate and test as soon as possible to determine infection status. Unless an employee tests positive for COVID-19, the new ETS does not require symptomatic employees to stay home. Employers should consult counsel to determine when symptomatic employees who test negative for COVID-19 may return to work.
- Tests Now May be Self-Administered and Self-Read
In the prior ETS, an employee’s self-administered COVID-19 test results had to be read by either the employer or an authorized telehealth provider. Under the new ETS, employees are permitted to administer and read the test themselves so long as the results can be verified. A time-stamped photograph of the results is sufficient verification.
- Employers Must Provide COVID-19 Information to Certain Entities
The ETS now explicitly requires that an employer provide unredacted personal identifying information regarding COVID-19 cases to the local health department, CDPH, and NIOSH immediately upon request.
- Removal of Cleaning and Disinfection Requirements/No Partitions
The ETS cleaning and disinfection requirements have been removed. In addition, during a major outbreak, partitions will no longer be required for exposed groups who cannot maintain distance while working together.
What should employers do?
- Employers should update their Covid-19 Prevention Plans, as well as notices, policies and forms to comply with the new ETS, and if updated, advise employees of the changes.
- Employers should regularly monitor the CDPH COVID guidance for updates.
- Employers should remember that in most cases, they also may elect to adopt more stringent requirements than in the ETS and also follow more conservative recommendations of public health authorities.
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