Cal/OSHA’s Revised COVID-19 Standards Up for Approval
On April 21, 2022, the California Occupation Safety and Health Standards Board (Cal/OSHA) voted to re-adopt a revised version of the COVID-19 Emergency Temporary Standards (“ETS”). Once approved the revised ETS will go into effect when filed with the Secretary of State, through December 31, 2022.
Adopted in November 2020, the original ETS introduced COVID-19 safety measure guidelines. Since then, Cal/OSHA updated the ETS several times to reflect changes to the COVID-19 emergency situation and new information.
The new version of the ETS incorporate the following changes:
Alignment with CDPH
To avoid conflicting or overlapping guidance, the revised standards provide workplace exclusion periods and requirements aligned with the California Department of Public Health’s (CDPH’s) isolation and quarantine requirements.
According to CDPH and the revised ETS, those infected with COVID-19 may return to work under the following conditions:
If the employee has no symptoms, or the symptoms are resolving:
- At least five days have passed since the positive test;
- At least 24 hours have passed since a fever has resolved without the use of medication; and
- a COVID-19 test taken on the fifth or later day after the initial positive test is negative.
If the employee’s symptoms are not resolving:
- At least 24 hours have passed since a fever has resolved without the use of medication; and
- 10 days have passed since symptoms first began.
Masks are required for 10 days from the first positive COVID-19 test or from the day symptoms began.
And per current CDPH guidelines (which the revised ETS now follow), workers who were exposed to COVID-19 and who do not experience symptoms need not quarantine, regardless of vaccination status. Exposed workers, however, must wear a mask for 10 days and test within 3-5 days after their last exposure. As critics pointed out, this may create exclusion pay issues for employers.
Simpler Definition of COVID-19 Test
The prior version of the ETS did not permit use of a home-kit test unless the employer or a telehealth professional actually observed the test as it was being administered.
The revised ETS removes this requirement and provides that a self-administered and self-read COVID-19 test is permitted if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
No Differentiation Between Fully-Vaccinated and Unvaccinated Workers
The previous version of the ETS defined “fully-vaccinated” and referenced that definition in sections pertaining to testing, quarantine, and face coverings.
The revised ETS removes this definition and does not differentiate between fully-vaccinated and unvaccinated. Specifically, now any employee with symptoms, regardless of vaccination status, is entitled to free COVID-19 testing, during paid time. Further, all employees, regardless of vaccination status, are entitled to request a respirator for voluntary use.
Updated Face Covering Definition
The previous version of the ETS provided, in part, that a fabric mask can be used only if it does not let light pass through when held through a light source. The revised ETS no longer includes this “no passing light” requirement.
Cleaning and Disinfecting Requirements Removed
The previous ETS required employers to identify and regularly clean frequently touched surfaces, and disinfect areas that were used by an individual infected with COVID-19. In line with more recent scientific data, Cal/OSHA deleted this particular cleaning and disinfection requirement.
Exclusion Pay Continues
Generally, the ETS provide that if an employee needs to be excluded from work due to workplace exposure and cannot work or telework, the employer is required to provide exclusion pay. The revised ETS still includes this requirement.
With the recent rise of COVID-19 cases, we are constantly reminded that COVID-19 is not going away soon. California employers are required to familiarize themselves with the updated ETS and take all necessary steps to protect their workplaces from the spread of COVID-19.
Sue M. Bendavid and Tal Burnovski Yeyni are employment defense attorneys.
This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.