On May 6, 2022, the fourth iteration of the California Division of Occupational Safety and Health’s (“Cal/OSHA”) COVID-19 Emergency Temporary Standards (“ETS”) became effective. The ETS apply to all employees in California who are not covered by Cal/OSHA’s Aerosol Transmissible Disease Standard, or who work alone or at home. As discussed in the January 2021 edition of the ALERT (Volume 39 – Number 4), the ETS first became effective on November 30, 2020. Since then, Cal/OSHA has revised the ETS multiple times to align with evolving CDC guidance and increased vaccination rates. Cal/OSHA’s guidance states that the most recent revisions were in light of updated guidance from the California Department of Public Health (“CDPH”) and to make the ETS more flexible if changes are made to CDPH guidance in the future. The latest revisions to the ETS will remain in effect through December 31, 2022.

1. Notable Revisions To The ETS

The most notable revisions to the ETS include the following:

Vaccination Status: Under the prior ETS, certain requirements and protocols differed depending on an employee’s vaccination status. However, under the revised ETS, an employee’s vaccination status is no longer relevant. The definition of “fully vaccinated” has been removed. Any employee can now request a respirator from their employer for voluntary use, and effective training and instruction must be provided to employees who make this request. Further, the revised ETS require employers to make COVID-19 testing available at no cost to any employee with COVID-19 symptoms, regardless of vaccination status and regardless of whether the potential exposure occurred at work.

Face Coverings: Employers no longer need to provide face coverings to employees to wear indoors or in vehicles if they are not fully vaccinated. However, employers must still provide face coverings and ensure they are worn by employees when required to do so by orders from the CDPH or applicable local public health order. The CDPH’s “Guidance for the Use of Face Coverings” currently requires that face coverings be worn only in specific high-risk settings, such as healthcare settings. Under the revised ETS, face coverings also may now be made of fabrics that let light pass through.

COVID-19 Testing: Under the revised ETS, a COVID-19 test for the purpose of meeting return to work requirements may now be both self-administered and self-read, but only if another means of independent verification of the results can be provided. In other words, a video or observation of the entire test process is no longer necessary, and Cal/OSHA advises that a date/time-stamped photo of the test result is now sufficient. Except for meeting the return-to-work criteria, there is no restriction on the type of COVID-19 test that can be used as long as it is approved (including by way of an Emergency Use Authorization) by the United States Food and Drug Administration to detect current infection and administered in accordance with authorized instructions.

Close Contacts: Employers still must make testing available at no cost to any close contact, but the revised ETS no longer require employers to exclude close contacts from the workplace. Instead, the revised ETS merely instruct employers to review current CDPH guidance and to develop and implement policies to prevent transmission by close contacts. The revised ETS also removed specific return-to-work criteria for close contacts, meaning employers simply must follow current CDPH and/or local quarantine guidance.

Return To Work Criteria For COVID-19 Cases: The revised ET updated the requirements for employees who test positive for COVID-19 to reflect the most recent CDPH Isolation and Quarantine Guidance issued on April 6, 2022. Regardless of vaccination status, employees who test positive can return to work after five days if the employee has a negative test, symptoms are improving, and they wear a face covering at work for an additional five days. Otherwise most employees can return after ten days.

Cleaning And Disinfecting: The revised ETS no longer includes cleaning and disinfection requirements, including the previous requirement to clean areas used by an employee with a confirmed COVID-19 case. Notably, the definition of “COVID-19 hazard” no longer includes objects or surfaces that may be contaminated with COVID-19. Despite this change, the potential exposure notice that Labor Code Section 6409.6 requires employers to send employees still must describe an employer’s cleaning and disinfection efforts.

Employer’s Notice Obligations: For outbreaks (three or more COVID-19 cases within an exposed group in the workplace during the infectious period over a 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, however, including those who were not present at the workplace during the relevant 14-day period, and now those who are considered to be a “returned case.” Notably, employees who had close contacts must have a negative test taken within three to five days after the close contact or must be excluded and follow the return-to-work requirements.

For major outbreaks (20 or more employees within an exposed group in the workplace during the infectious period over a 30-day period), employees in the exposed group are required to be tested or must be excluded and follow the return-to-work requirements. Additionally, employers no longer need to consider using cleanable solid partitions when social distancing cannot be maintained.

Returned Cases: The revised ETS now contains a definition for “returned case,” which means an employee with a confirmed COVID-19 case who met the ETS return-to-work criteria and did not develop any COVID-19 symptoms after returning. Notably, 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. Under the revised ETS, 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.

2. Main Takeaways

If any employers have not done so already, they should review their current COVID-19 policies and procedures, including the written COVID-19 Prevention Program required by the ETS, and update them as necessary to comply with the revised ETS. Employers should continue to monitor new updates and developments from Cal/OSHA and CDPH as CDC guidance continues to evolve.

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About The Author

Robert K. Foster is an Associate with Sheppard, Mullin, Richter & Hampton LLP in the firm’s San Diego (Del Mar) Office. Mr. Foster represents employers in various types of employment litigation, including class action wage and hour claims; PAGA claims; and discrimination, wrongful termination, harassment and retaliation lawsuits. In addition, he also provides strategic advice to employers on a wide range of employment issues, including wage and hour compliance, employee classification, and OSHA matters. He is a frequent contributor to the California Labor and Employment ALERT Newsletter and several other articles and is a contributing author to the Employer’s Guide to COVID-19 and Emerging Workplace Issues.

Robert litigates actions involving trade secret claims, unfair competition and enforcement of restrictive covenants and non-competes. He also handles various commercial litigation disputes, including breach of contract, breach of fiduciary duty, fraud, tortious interference with contract, unfair competition and shareholder derivative claims.