The California Division of Occupational Safety and Health (Cal/OSHA) recently announced extension of its COVID-19 Emergency Temporary Standards (ETS) for workplaces and at the same time made several notable changes.
The new ETS went into effect on May 5 and are scheduled to expire on Dec. 31. California is notable because for the last several years it has had one of the most extensive and detailed set of temporary rules for employers in the entire country. The previous ETS had been due to expire on May 6.
“It may feel as though the pandemic is behind us, but the Cal/OSHA Standards Board is not yet ready to lift all COVID-19-related safety measures for workplaces in California,” commented attorneys Ben Gipson and Samantha Saltzman of the DLA Piper law firm.
The revised ETS still applies to all employees and places of employment in California, except for workplaces with one employee who has no contact with others, employees working from home, those already covered by Cal/OSHA’s aerosol transmission standards (such as certain healthcare facilities and laboratories), and employees teleworking from a location of the employee’s choice which is not under the employer’s control.
The standards have been revised to follow the California Department of Public Health (CDPH) update issued in April to its isolation and quarantine guidance. CDPH no longer requires close contacts to quarantine after exposure, though those not fully vaccinated or recently infected in the prior 90 days are advised to still be excluded from work for at least five days with testing.
Among the changes in the ETS are some of the key definitions of terms used in the standard.
Close contact and high-risk exposure: These definitions were revised to align with the CDPH’s related definitions, switching terminology from “high-risk exposure” to “infectious period” and including references to definitions in CDPH orders or regulations.
COVID-19 test: This definition was amended to provide that, in order to meet the ETS’s return-to-work criteria, a test may be both self-administered and self-read only if another means of independent verification of results can be provided, such as a timestamped photograph of the results.
Face coverings: The requirement that light does not pass through a mask when it is held up to a light source was removed from this definition, likely due to concerns that even some respirators (like N95s) may not meet that standard.
Fully vaccinated: This entire definition was deleted, largely because the ETS no longer distinguishes between vaccinated and unvaccinated employees. However, such distinctions may still be important under local orders that are more restrictive than the ETS.
Returned case: This new definition applies to COVID-19 cases in the 90 days after the initial symptom onset (or first positive test, if asymptomatic) for individuals who returned to work pursuant to the related criteria in the ETS and did not develop COVID-19 symptoms after returning.
Employers Should Take Heed
Given the new “returned case” definition above, the related testing requirement exception was revised. The prior version of the ETS generally required employers to make testing available to all employees who had close contact to a COVID-19 case in the workplace, except for employees who had COVID-19 in the last 90 days. However, the revised ETS replaces this exception language with “returned cases.”
As noted, the distinctions between vaccinated and unvaccinated employees were removed from the ETS and as a result, requirements previously limited to unvaccinated employees now apply to all employees.
For example, Gipson and Saltzman point out that the revised ETS requires employers to provide respirators (like N95s) for voluntary use to all employees upon request, while the prior version only required respirators be provided to unvaccinated employees upon request.
In addition, employers must keep in mind that other face covering provisions of the ETS remain in effect, such as permitting employees to voluntarily wear face coverings unless doing so creates a safety hazard.
Similarly, while the current ETS only requires employers to make testing available to those employees with COVID-19 symptoms who are not fully vaccinated, the revised ETS eliminates this limitation and, accordingly, requires employers to offer testing to all employees with COVID-19 symptoms regardless of vaccination status. “Employers should prepare for potentially higher costs due to this expanded requirement,” the attorneys warn.
Some key changes also have been made in the outbreak sections of the standards. For example, in the section discussing multiple COVID-19 infections and outbreaks, a new requirement was added for close contacts. Specifically, employees who have had close contact must have a negative test taken within three to five days after the contact or must be excluded and follow return-to-work requirements noted above for COVID-19 cases from the date of the last known close contact.
In addition, instead of requiring the use of cleanable solid partitions where six feet of physical distancing is not feasible, like in the prior version, the revised ETS requires as much distance between persons as is feasible.
Similarly, in the major outbreak section, the revised ETS clarifies that employers must either require employees in the exposed group to undergo COVID-19 testing at least twice a week during a major outbreak (rather than only making such testing available); or exclude employees in the exposed group and follow return-to-work criteria for COVID-19 cases from the date the outbreak begins.
Keep in mind that the new ETS also removes vaccination-based distinctions; cleaning and disinfection requirements; obligations to instruct residents not to share unwashed dishes, glasses, cups, utensils and similar items; and the exemption from exclusion requirements following close contact for employees who previously had COVID-19 in the prior 90 days.
Cal/OSHA posted an update to the Revisions to the ETS FAQ. This FAQ details the changes in the May 6 version of the ETS and requirements from prior ETS that remain. There is a separate General COVID-19 ETS FAQ that responds more to the application of the ETS and has been updated to conform to the recent changes in the ETS. The Cal/OSHA Isolation and Quarantine Fact Sheet has also been updated to reflect changes in the revised ETS.