On May 5, 2022 Cal/OSHA approved a third and final version of the  COVID-19 Prevention Emergency Temporary Standards(“ETS”) which will remain in effect until Dec 31, 2022.

While most of the current ETS remains the same as the previous version, there are some significant changes for employers, as well as the removal of some previous requirements. Cal/OSHA has stated that updated guidance in the form of FAQs will be forthcoming. In the meantime, the following are highlights of the revised ETS:

• The definition of “fully-vaccinated” has been removed from the ETS. This is significant because the ETS no longer distinguishes between fully-vaccinated and not-fully-vaccinated employees. Therefore, most requirements of the ETS will apply in the same manner regardless of vaccination status, including:

Testing Requirements: Employers will have to offer testing to all symptomatic employees, and all employees with a workplace close contact, regardless of vaccination status. Testing must be provided at no cost to the employee, and during paid working time. The only exception will be based on whether an exposed employee recently recovered from COVID-19 (see “returned cases” below).

Providing Respirators: Employers must offer respirator masks (e.g., N95 masks) to employees upon request. All employees (regardless of vaccination status) are entitled to a respirator (mask) for voluntary use, free of charge, if they ask for one.

• The term, “returned cases,” has been added. This term refers to employees with naturally-conferred immunity, i.e. employees who have recovered from COVID-19 in the past 90 days and remain symptom free.

If such employees have had a workplace close contact, employers are not required to offer them testing. Nor are employers required to offer such employees testing if they are part of an outbreak’s “exposed group.”

• Face Coverings: Under the latest ETS, employers no longer need to provide face coverings to employees who are not fully vaccinated to wear indoors or in vehicles. However, employers must still provide face coverings and ensure they are worn by employees when required to do so by orders from the California Department of Public Health (“CDPH”) or applicable local public health order. The CDPH’s “Guidance for the Use of Face Coverings” currently requires face coverings be worn only in specific high-risk settings, such as healthcare settings.  Also, face coverings can now be made of fabrics that let light pass through. The requirement that they “not let light pass through when held up to a light source” has been removed.

• COVID-19 Tests: To meet the return-to-work requirements, a COVID-19 test may now be both self-administered and self-read, but only if another means of independent verification of the results can be provided.  The example noted in the ETS is a time-stamped photograph of an employee’s COVID-19 test results.  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.
• Cleaning and Disinfecting: There are no longer cleaning and disinfecting requirements, including the previous requirement to clean areas used by a COVID-19 case.  The definition of “COVID-19 hazard” no longer includes objects or surfaces that may be contaminated with COVID-19.

• Close Contacts: Under the ETS, employers still must make testing available at no cost to any close contact, but there is no longer any requirement to exclude close contacts from the workplace.  Instead, employers must review and follow CDPH guidance for persons who had close contacts, including any guidance regarding quarantine or other measures to reduce transmission.  Currently, the CDPH’s quarantine guidance instructs that asymptomatic individuals who are not fully vaccinated and boosted must quarantine (stay home) for five days.  Thus, while the new ETS may no longer require an employer to exclude close contacts, the CDPH’s current guidance, which the ETS requires employers to follow, may still require exclusion (and knowledge of an employee’s vaccination status).  Employers are also required to develop, implement, and maintain effective policies to prevent transmission of COVID-19 by persons who had close contacts.
• Return to Work: The ETS now clarifies the return to work requirements for COVID-19 cases, regardless of vaccination status or previous infection:

Those who do not develop COVID-19 symptoms or whose COVID-19 symptoms are resolving shall not return to work until: (1) at least five days have passed from the date the symptoms began or, if the person does not develop symptoms, from the date of the first positive test; (2) 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; and (3) a negative test from a specimen collected on the fifth day or later is obtained. If the employee is unable to test or the employer chooses not to 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 first positive test.

Those whose COVID-19 symptoms are not resolving, may not return to work until: (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 medication; and (2) symptoms are resolving or 10 days have passed from when the symptoms began.

Further, a COVID-19 case shall wear a face covering in the workplace until 10 days have passed since the date that the symptoms began or, if the person did not have symptoms, from the date of their first positive test.

We at Merhab Robinson & Clarkson are here to help you answer any questions you may have regarding this new announcement.