Cal-OSHA Revises Covid-19 Emergency Temporary Standards for the Workplace

To combat the effects of COVID-19 in the workplace, Cal/OSHA adopted the COVID-19 Emergency Temporary Standards (ETS) which first took effect on November 30, 2020. It was later readopted on June 17, 2021. On December 16, 2021 the (ETS) was readopted for a second time and will take effect January 14, 2022. This latest amended readoption contains a number of revisions. The most notable revisions are the following:

1. Face Coverings. “Face covering” means a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers (i.e., fabrics that do not let light pass through when held up to a light source). A face covering has no visible holes or openings and must cover the nose and mouth. A face covering does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.
Employees exempted from wearing a face covering must physically distance at least 6 feet from others and be fully vaccinated or submit to COVID-19 testing paid by the employer at least once a week

2. Worksite. “Worksite” does not include locations where the employee works alone, remote locations chosen by the employee, or their personal residence. In certain circumstances, the employer might be able to forego the mandatory notice requirement of COVID-19 exposure in the workplace given to employees working at a place that is not defined as a “worksite”.

3. Fully Vaccinated Definition. “Fully vaccinated” means the employer has documented that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Vaccines must be FDA approved; have an emergency use authorization from the FDA; or, for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO).

4. Self -administered COVID -19 testing. If the employee self-administers a COVID-19 test at their home, a tele-health professional must observe the test results.

5. Testing due to close contacts. Testing must be provided to any workplace close contacts regardless of the employee’s vaccination status. Previously, employers only were required to offer COVID-19 testing to unvaccinated workplace close-contacts. Cal/OSHA will now require employers to offer testing to employees, vaccinated or not, who had a workplace close contact.

The only exception for close-contact testing are employees who recovered from COVID-19 in the past 90 days and are asymptomatic.

6. Outbreak Testing. Outbreaks where 3 or more employees in their high-risk exposure period visited the workplace during 14-day period employers shall make COVID-19 testing available once a week at no cost, during paid time, to all employees in the exposed group who remain at the workplace, or more frequently if recommended by the local health department.
Exceptions are employees who were not present at the workplace during the 14-day period.
Additionally, if the outbreak is a “major outbreak” with 20 or more employees visiting the workplace while in their high-risk exposure period, then employers shall make COVID-19 testing available o twice a week at no cost, during paid time, to all employees in the exposed group who remain at the workplace, or more frequently if recommended by the local health department.

7. Employees Notification. Employers must continue to properly notify employees, employee representatives and any other workers at a worksite of possible COVID-19 exposures within one business day.

8. Exclusion from Worksite. Under the previous version of the ETS, employees who had a close contact but were fully vaccinated and remain asymptomatic didn’t need to be excluded from the workplace. Now, fully vaccinated employees who had a close contact and remain asymptomatic must wear a face-covering in the workplace for 14 days and maintain social distancing for 14 days after their last known close contact.

9. Return-to-Work Criteria. If the employee had close contact, but never developed COVID-19 symptoms they may return to work after 14 days have passed since the last known close contact. However, the employee who had the close contact is permitted to return early under the following scenarios:

1. 10 days after the close contact if the employee wears a face covering and maintains 6 feet of separation from others for 14 days.

2. 7 days after the close contact if the person tested negative for COVID-19 using a COVID-19 test with the specimen taken at least five days after the last known close contact; and the person wears a face covering and maintains six feet of distance from others while at the workplace for 14 days following the last date of close contact.
The return-to-work criteria for COVID-19 cases with and without symptoms and close contacts who develop symptoms remain unchanged.

We would also like to remind you that employers and places of employment are required to establish and implement an effective written COVID-19 Prevention Program (CPP) pursuant to the Emergency Temporary Standards in place for COVID-19.