Cal/OSHA’s COVID-19 Emergency Temporary Standards Change Yet Again

On December 16, 2021, the California Occupational Safety and Health Standards Board voted to re-adopt the Cal/OSHA Emergency Temporary Standards (“ETS”) on COVID-19 infection prevention, which takes effect on January 14, 2022. The revised ETS includes notable changes, including changes to masking and testing requirements for fully vaccinated individuals, exceptions for excluding close contacts, return to work criteria, and definitions for certain terms, as further described below. Cal/OSHA has released a summary and plans to publish updated FAQs once the revised ETS is effective.

Key ETS Changes

1. COVID-19 Testing Following Exposure.

• Existing Rule: An employer must make COVID-19 testing available at no cost, during paid time, to all employees who had a close contact and provide them with information on benefits, unless the employee was fully vaccinated, or in other limited circumstances.
• New Rule: An employer must make COVID-19 testing available to all employees who had a close contact, regardless of vaccination status, with limited exceptions. (Section 3205(c)(3)(B)(5).)

2. Exceptions to Excluding Close Contacts Requires Face Covering and Physical Distancing.

• Existing Rule: Employers must exclude persons who had a close contact with a COVID-19 case unless (1) the individual was fully vaccinated before the close contact and is asymptomatic, and (2) the individual recovered from COVID-19 in the past 90 days and has remained symptom free.
• New Rule: The same exclusion rules apply, but for the excepted employees to return, they must wear a face covering and maintain 6 feet of distance from others for 14 days. The employer also must provide information about applicable COVID-19 precautions. (Section 3205(c)(9).)

3. Return to Work Criteria Provides a 14, 10 and 7-day Timeline.

• Existing Rule: A person who had a close contact is permitted to return to work after 10 days if they never developed symptoms.
• New Rule: A person who had a close contact but never developed symptoms may return to work after 14 days, except when:
  (1) 10 days have passed and the person wears a face covering and maintains six feet of distance from others while at the workplace for 14 days following the close contact, or
  (2) 7 days have passed, the person tested negative for COVID-19 at least 5 days after the 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 close contact. (Section 3205(c)(10)(D)(1).)

4. Critical Staffing Shortages.

• Existing Rule: Employers are provided an exception from the return to work requirements during critical staff shortages for health care workers, emergency response workers, and social service workers, when there are not enough staff to provide safe patient care, which may be implemented after 7 days if they test negative at least 5 days after exposure. (Section 3205(c)(10)(D)(3).)
• New Rule: The amended ETS removes this exception for critical staff shortages, and, instead, provides a 7-day return to work timeline for all exposures.

5. Outbreak Testing.

• Existing Rule: When a COVID-19 outbreak occurs, an employer is not required to make testing available to fully vaccinated employees before the outbreak period and who do not have COVID-19 symptoms.
• New Rule: This exception was removed. (Section 3205.1(b).)

6. Amended Definitions.

• “COVID-19 test”: The amended rule provides that a COVID-19 test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
• Amended definitions for “Face coverings,” “Fully vaccinated,” and “Worksite”.

December 13 CDPH Mask Guidance
The California Department of Public Health (“CDPH”) issued new Guidance for the Use of Face Coverings (“Guidance”) on December 13, 2021, which enacted a temporary mask mandate for all indoor public settings, irrespective of vaccine status. The mandate applies to all workplaces, with limited exceptions. This Guidance is in effect from December 15, 2021, through January 15, 2022. The CDPH recently provided clarification that if a local health jurisdiction had pre-existing masking requirements, irrespective of vaccine status, in indoor public settings, prior to December 13, 2021, then the local health jurisdiction is not required to comply with the Guidance, and the local mask requirement continues to apply. Ultimately, all employers must follow the current CDPH Guidance and the ETS’s face covering requirements.

Please contact a Meyers Nave attorney for help to navigate these issues.

Join Meyers Nave for our Employment Law Update on January 11 and 13, 2022 to discuss this and other key employment law updates.