On September 29, 2022, Governor Gavin Newsom signed Assembly Bill (AB) 152, extending the obligation of employers with 26 or more employees to provide COVID-19...
Cal/OSHA Approves 3rd Revision of the Emergency Temporary Standards
On April 21, Cal/OSHA held a public hearing and re-adopted a modified version of the Emergency Temporary Standard (ETS) that originally went into effect on November 30, 2020. This third revision took effect on May 6, 2022 and will remain in place through December 31, 2022. The revised ETS can be found here: https://www.dir.ca.gov/oshsb/documents/Apr212022-COVID-19-Prevention-Emergency-txtbrdconsider-3rd-Readoption.pdf.
DIR's Frequently Asked Questions (FAQ) have also been updated and can be found here: https://www.dir.ca.gov/dosh/coronavirus/Revisions-FAQ.pdf.
As a reminder, the ETS applies to all employees not covered by Cal/OSHA’s Aerosol Transmissible Disease Standard.
Many of the provisions from the second revision remain in effect but several significant changes have been made that employers must implement. We have fully reported on each ETS revision and employers can read all about it above.
The third revision is the final ETS that Cal/OSHAS can issue on an emergency basis unless Governor Newsome issues another executive order authorizing it. Assuming no executive order is issued, the Board could consider a permanent infectious disease standard for general industry. The April 21, public hearing included significant debate about what a permanent standard would look like. Discussion included whether it would be a permanent infectious disease standard, expansion of the aerosol transmissible disease standard and/or amendment of the Illness Prevention Program (IIPP) standard. We will update this section when, and if, a final, permanent version is introduced.
The third revision continues Cal/OSHA’s alignment of ETS provisions with the CDPH regarding isolation, quarantine and return to work guidelines.
Cal/OSHA has prepared two (2) fact sheets. The first, is a bullet point checklist of changes to the ETS and can be found here: https://www.dir.ca.gov/DOSH/dosh_publications/COVIDOnePageFS-04-21-2022.pdf. The second factsheet summarizes isolation and quarantine guidelines and can be found here: https://www.dir.ca.gov/dosh/dosh_publications/Isolation-and-Quarantine-fs.pdf.
Provisions Still in Place
- Employers must establish, implement, and maintain an effective written COVID-19 Prevention Program that includes:
- Identifying and evaluating employee exposures to COVID-19 health hazards.
- Implementing effective policies and procedures to correct unsafe and unhealthy conditions.
- Allowing adequate time for handwashing
- Employers must provide effective training and instruction to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19-related benefits that affected employees may be entitled to under applicable federal, state, or local laws.
Below are the key changes:
The Definition of Vaccination Status is Removed
The latest ETS revision eliminates the definition of “fully vaccinated” and now all ETS provisions are applicable regardless of vaccination status. Now all employees may request a respirator for voluntary use and employers must offer COVID-19 testing available, at no cost, to all employees exhibiting COVID-19 symptoms during employees paid time. In previous versions of the ETS only non-vaccinated employees were entitled to an employer provided respirator and employers were only required to offer testing to unvaccinated employees.
Employers are now required to foot the bill for testing all employees who may have been exposed outside the workplace.
No Set Rules for Close Contact Exclusion
The ETS directs employers to adhere to the CDPH guidelines for exclusion of close contacts. Currently, the CDPH doesn’t require exclusion of close contacts, unless in high risk exposure settings defined as emergency shelters, healthcare settings, local correctional and detention centers, homeless shelters, and long term care settings and adult and senior care facilities. The CDPH does recommend close contacts be tested within 3-5 days after last exposure. No exclusion is required unless the close contact develops symptoms or tests positive. All close contacts should wear face coverings for 10 days. See CDPH Guidance on Isolation and Quarantine can be found here: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx.
The ETS did not eliminate exclusion pay per se but exclusion pay for close contacts is currently not required under the CDPH except when (1) a close contact develops symptoms subsequent to the work exposure and is seeking a diagnosis; (2) the employer excludes the close contact from the workplace when there’s no requirement to do so; or (3) the CDPH or local public health authority excludes the close contact.
At the public hearing on April 21st, Cal/OSHA clarified that the CDPH definition of “close contact”, which is broader than the ETS definition, will not govern or change the definition of close contact in the ETS. The ETS defines “close contact” as being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period that overlaps with the infectious period of the COVID-19 case. Cal/OSHA stated that only an order or regulation issued by the CDPH (and not merely guidance) would supersede the ETS definition of close contact.
Businesses must still develop, implement, and maintain policies to prevent transmission of COVID-19 by persons who had close contacts.
Employers are encouraged to periodically review the CDPH Guidance on Isolation and Quarantine to ensure compliance with quarantine and isolation requirements.
Specific Rules for COVID-19 Cases
The ETS clarifies the quarantine and return to work requirements for COVID-19 cases, i.e., those employees who test positive. The ETS confirmed that exclusion and return to work criteria will follow the CDPH recommendations. Therefore, if the CDPH changes its guidance, that guidance will supersede the ETS requirements. COVID-19 cases are treated the same regardless of vaccination status or previous infection and the CDPH current guidelines regarding return to work are as follows:
- Employees who are asymptomatic or their symptoms are resolving may return to work:
- Five (5) days after the date the symptoms began or, if the employee does not develop symptoms, from the date of the first positive test;
- At least 24 hours have passed since a fever of 100.4 degrees or higher has resolved without the use of fever reducing medicine; and
- A negative test collected from a specimen on the 5th day or later is obtained. If the employee is unable to test, or the employer doesn’t require a test, 10 days must have passed from the date the symptoms began or, if the person does not develop symptoms, from the date of the positive test.
- Employees with COVID-19 symptoms that are not resolving, may return to:
- When at least 24 hours have passed since a fever of 100.4 degrees or higher has resolved without the use of fever reducing medication; and
- Symptoms are resolving or ten (10) days have passed since the symptoms first began.
Finally, a COVID-19 case must wear a face covering in the workplace until ten (10) days have passed since the symptoms first began or, if the person did not have symptoms, from the date of their first positive test.
The return-to-work criteria apply regardless of whether an employee has previously been excluded or other precautions taken in response to an employee’s close contact or membership in an exposed group.
Persons Who Should Isolate
Persons Who Test Positive for COVID-19
Everyone, regardless of vaccination status, previous infection or lack of symptoms
*Antigen test preferred
Close Contacts – General Public (No Quarantine)
Asymptomatic Person Who are Exposed to Someone with COVID-19 (No Quarantine)
Everyone, regardless of vaccination status.
Persons Infected within the prior 90 days do not need to be tested, quarantines, or excluded from work unless symptoms develop
Employers no longer need to provide face coverings to employees who are not fully vaccinated to wear indoors or in vehicles. Additionally, the face covering mandate for unvaccinated employees has been dropped. However, if local health orders, or the CDPH require the provision of face coverings, the employer must follow those requirements. In prior versions of the ETS, face masks could not have any light passing through the fabric but the third readoption eliminates this requirement.
Types of Acceptable COVID-19 Tests Broadened
As long as the test has an Emergency Use Authorization it can be used by employees to test for positive COVID-19 cases which means that employees can be provided antigen tests to self- administer and self-read. Self-administered and self-read tests can be used to meet return to work requirements but only if another means of independent verification of the results can be provided. For example, an employee can provide a time stamped photograph of the test results for return-to-work purposes.
Contaminated Surfaces No Longer a Hazard
Surfaces and objects potentially contaminated with COVID-19 are no longer included within the definition of a COVID-19 hazard. The ETS removed all cleaning and disinfection requirements, including the requirement to clean an area used by a COVID-19 case.
Despite this change, the potential exposure notice that is required by Labor Code section 6409.6 requires employers to describe it’s cleaning and disinfecting policies.
Outbreaks and Major Outbreaks
In an outbreak setting (defined as three (3) or more COVID-19 cases within a fourteen (14) day period), employers must still make COVID-19 testing available at no cost to all employees in the exposed group, regardless of vaccination status. There are some exceptions, including those who are not present at the workplace during the relevant 14-day period, and now those who are considered to be a “returned case,” discussed below.
Notably, employees who had close contacts during an outbreak must have a negative test taken within three to five days after the close contact or must be excluded and follow the ETS’ return-to-work requirement.
In the event of a major outbreak (defined as twenty (20) or more employees within an exposed group in the workplace during the infectious period over a 30-day), employees in the exposed group are required to be tested or must be excluded and follow the return-to-work requirements.
Employers no longer need to consider using cleanable solid partitions when social distancing cannot be maintained.
Returned Cases – Applicable to Outbreaks
"Returned cases" is a new definition and operates similarly to prior versions of the ETS where COVID-19 cases who return to work and, as a result of having the infection, were subject to relaxed protocols (similar to vaccinated employees) because of their ninety (90) day temporary immunity.
The ETS defines "returned case" as a COVID-19 case that has met the ETS return-to-work criteria and did not develop COVID-19 symptoms after returning to work. A person shall only be considered a "returned case" for 90 days after the initial onset of COVID-19 symptoms or, if the person never developed COVID-19 symptoms, for 90 days after the first positive test. Employers do not need to provide testing to returned cases who are close contacts or to asymptomatic returned cases in the exposed group for an outbreak. After 90 days symptom free, these individuals are removed from the status of “returned case”.
We will continue to monitor Cal/OSHA and CDPH guidelines and will update this section if and when further changes are made.