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New COVID-19 Emergency Temporary Standard Takes Effect May 5: Employers Should Update their COVID-19 Prevention Plans

An updated COVID-19 Emergency Temporary Standard (ETS) took effect on Thursday, May 5, 2022, and will remain in effect through the rest of 2022. You can find a redline version of the ETS here, and the final version will eventually be located here. Some restrictions have been relaxed and employers may want to prepare accordingly.

What Stayed The Same?

The revised ETS still requires employers to perform contact tracing, notify employees of a potential exposure, screen employees for symptoms, provide exclusion pay to positive cases, and provide testing at no cost to symptomatic employees and close contacts. The definition of a “close contact” remains unchanged.

The ETS never had requirements regarding mandatory vaccination. Employers can continue to have policies that require employees to be vaccinated, with exceptions for reasonable accommodations. Employers may also maintain masking and testing policies that are more restrictive than the ETS.

What Is New?

This fourth version of the ETS aligns with California Department of Public Health (CDPH) regulations. Some highlights in the update include:

Vaccination Status No Longer Determinative: The ETS now treats all employees the same, regardless of their vaccination status.

Testing Obligations: When testing is required, employees may self-test (including at-home antigen tests) if the employee can provide “another means of independent verification of the results,” for example, using a time-stamped photograph.

Elimination of Cleaning Requirements: Employers are no longer required to implement cleaning and disinfecting procedures. Additionally, fixed partitions are no longer required when social distancing is impossible.

Relaxed Mask Regulations: Unless the CDPH indicates otherwise, employers need not require masks indoors, regardless of vaccination status.

Positive Cases: Upon testing positive, an employee must stay at home for at least five days from the onset of symptoms or five days from the date of the first positive test if there are no symptoms. If the employee tests negative and at least 24 hours have elapsed since the employee experienced fever or other symptoms, they may return to work. Employers must provide exclusion pay for the entire time the employee is isolated due to work-related exposure.

Symptomatic Employees: Current CDPH guidance encourages symptomatic employees, regardless of vaccination status or whether they previously had COVID-19, to both self-isolate and test as quickly as possible, isolating until testing results are in.

Takeaways for Employers

Employers may relax some of their COVID-19 protocols, and if they do, should update their COVID-19 Prevention Plans accordingly. For more detailed information about the ETS, visit Cal/OSHA’s ETS FAQ here. As always, please reach out to your employment counsel at Meyers Nave with any questions, concerns, needs for clarification, or emergencies you may have.