Cal/OSHA Updates COVID-19 Emergency Temporary Standards
- By: Gretchen Dugan
On December 16, the Occupational Safety and Health Standards Board readopted the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (“ETS”) for the second time. These updated ETS’s comply with the latest recommendations from the California Department of Public Health, are more in line with the federal OSHA, and take effect on January 14, 2022.
Key updates to definitions include amendments to definitions for “COVID-19 test”, “face covering”, and “worksite.”
“COVID-19 test” definition has been amended to exclude tests that are both self-administered and self-read, unless observed by the employer or a telehealth proctor. This change eliminates employee’s ability to conduct self-administered tests at home in order to satisfy expedited return to work requirements.
“Face Covering” now requires that fabric face coverings not let light pass through when held up to a light source, although clear masks are allowed to facilitate communication with hearing impaired persons or others with special communication needs.
“Worksite” now specifically excludes the employee’s personal residence, locations where an employee works alone, and remote work locations chosen by the employee.
In addition to the above, there have been some amendments to the regulatory requirements of the ETS. Specifically, employers must now provide free testing for all employees following a close contact exposure. This means that the test is available at no cost and is allowed during paid time to employees who were fully vaccinated before the “close contact” with a COVID-19 case occurred, even if they are asymptomatic.
Additionally, during outbreaks and major outbreaks, employers must now make weekly testing for outbreaks, or twice-weekly testing for major outbreaks, available to asymptomatic fully vaccinated employees in the exposed group.
Also, the ETS now mandates that employees who are fully vaccinated, or recently recovered from COVID-19, may remain at work so long as they remain asymptomatic, AND wear a face covering AND maintain six feet of physical distance from others in the workplace for 14 days following a close contact.
Asymptomatic employees: The updated ETS reinstated the 14-day quarantine, up from ten days. However, the regulations provide two exceptions to the general rule: (1) where ten days have passed since the close contact, and the employee wears a face covering, and maintains six feet of distance while at the workplace for 14 days following the close contact; or (2) seven days have passed since the close contact, and the employee tested negative for COVID-19 with a specimen taken at least five days after the close contact, and the employee wears a face covering, and maintains six feet of distance while at the workplace for 14 days following the close contact.
Symptomatic employees: Unvaccinated employees who are symptomatic must satisfy the three-part return-to-work test for symptomatic COVID-19 cases, which requires satisfaction of the following criteria: (1) At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medications; (2) COVID-19 symptoms have improved; and (3) At least ten days have passed since COVID-19 symptoms first appeared.
Note, there are no longer any expedited return-to-work procedures allowed for unvaccinated employees in the health care and emergency response sectors.
What Stayed the Same?
Employers must continue to establish, implement, and maintain their COVID-19 Prevention Programs. These programs must include identifying and evaluating employee exposures, implementing effective policies and procedures to correct unsafe and unhealthy conditions, and allowing adequate time for handwashing and cleaning frequently touched surfaces.
Employers must also provide training and instruction to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19 benefits that affected employees may be entitled to under applicable federal, state, or local laws.
The Road Ahead
The first step employers should take is to update their COVID-19 Prevention Policies to comply with these updated ETS guidelines. Furthermore, employers should ensure that they have policies, procedures, and supplies in place to meet the mandatory testing requirements.
COVID-19 is the gift that keeps on giving, and as always, we recommend checking in with your legal counsel regarding any questions you have.