Regulatory Update: Cal/OSHA Extends and Changes COVID ETS

Employers in California are now subject to an extension to April 14 of the California Division of Occupational Safety and Health (Cal/OSHA) COVID-19 Emergency Temporary Standards (ETS), which also has been subject to a number of changes employers need to be aware of.

The original detailed and lengthy standards went into effect at the beginning of last year. Although the state’s ETS had been challenged in court by employer groups, they were later upheld. Similar COVID emergency standards were adopted by other states, like Virginia and Oregon, some of which were made permanent later.

The California standards possess significance that reaches far beyond the state’s borders because so many American businesses are either based there or have employees located in the state.

Attorneys urge affected employers to re-examine their workplace COVID-19 safety policies and revise their policies as required by the readopted ETS, to ensure compliance.

The facemask guidance remains mostly the same as in the original rule, but cloth face coverings must now pass the “light test.” To qualify as a face covering a cloth face covering may not let light pass through it when held up to a light source, note attorneys Sean Paisan and Sierra Vierra of the Jackson Lewis law firm. In addition, both vaccinated and unvaccinated employees now must wear face coverings during screening.

Employers must still exclude employees who test positive for COVID-19 until return-to-work requirements are met. Also excluded are employees who had close contact with a positive individual unless they are fully vaccinated and asymptomatic. These employees can remain in the workplace, but they now must wear a face covering and practice social distancing for 14 days.

Previously employers were not required to provide testing to fully vaccinated, asymptomatic employees who came into close contact with someone who tested positive or had found themselves in an outbreak setting (defined as three or more employees testing positive during a 14-day period). The revised ETS removes this distinction between vaccinated and unvaccinated employees with respect to testing.

Paisan and Vierra point out that while those employees who have had close contact, but never developed COVID-19 symptoms, may return to work after 14 days since their last known close contact, the employee who had the close contact also is permitted to return early under the following scenarios:

• 10 days after the close contact if the employee wears a face covering and maintains 6 feet of separation from others for 14 days.

• Seven days after the close contact if the person tested negative for COVID-19 using a test with the specimen taken at least five days after the last known close contact; and the person wears a face covering and maintains 6 feet of distance from others while at the workplace for 14 days following the last date of close contact.

The ETS readoption also removes the return-to-work exemptions for essential critical infrastructure workers during staffing shortages, Paisan and Vierra point out.

Under the June 2021 version of the ETS, employers were not required to provide COVID-19 testing to fully vaccinated, asymptomatic employees who came into close contact with a COVID-19 positive individual or in an outbreak setting. An outbreak under the ETS is defined as three or more employees testing positive for COVID-19 within an exposed group during a 14-day period.

This newest version of the ETS removes this distinction between vaccinated and unvaccinated employees with respect to testing, the lawyers said. Under the amended version of the ETS, employers must also make COVID-19 testing available at no cost, during paid time, to fully vaccinated, asymptomatic employees who have had close contact or during an outbreak.

The revised version of the ETS also clarifies that “worksite” does not include locations where the employee works alone (without exposure to other employees), the employee’s home or “alternative work location” chosen by the employee when working remotely.