California’s Occupational Safety and Health Standards Board met on April 21 and approved the third and final readoption of the COVID-19 Emergency Temporary Standard. This third readoption relaxes some of the prior COVID-19 workplace health and safety requirements in California and takes effect on May 5.
On December 16, 2021, Governor Gavin Newsom signed Executive Order N-23-21, which authorized a third readoption of the COVID-19 Emergency Temporary Standard (ETS) and established the effective period as May 5 to December 31, 2022. Therefore, barring another executive order, the third readoption will be the last version of the ETS. The third readoption allows the California Division of Occupational Safety and Health (Cal/OSHA) more time to adopt a permanent standard, which would take effect beginning in 2023.
A large majority of the current version of the ETS will remain in the upcoming final version. This includes employer obligations for exclusion pay to positive cases, providing testing at no cost to symptomatic employees and close contacts, employee screening for symptoms, contact tracing, and notification obligations to employees of potential exposure.
The third readopted ETS includes changes in line with the state’s recent direction of relaxing restrictions. Some of the changes allow for more flexibility as Cal/OSHA aligns itself with California Department of Public Health (CDPH) changes. During the April 21 meeting, Cal/OSHA’s Deputy Chief of Health and Research and Standards Eric Berg characterized the third readoption as following the “latest science and CDPH regulations.”
HIGHLIGHTS OF THE ETS READOPTION
Highlights of the ETS that employers should be aware of include the following:
- Testing Obligations: When testing is mandatory under the ETS, employees are now allowed to use self-tests (including at-home antigen tests) without being live proctored or on video. Instead, employees can provide “another means of independent verification of the results,” such as a time-stamped photograph.
- Return-to-Work Requirements: The ETS aligns itself with the latest CDPH guidance on the isolation and quarantine of employees from the workplace.
- Positive Cases: Only employees who test positive for COVID-19 must be excluded from work. Upon testing positive, the 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 the employee does not develop symptoms. The employee must then take a COVID-19 test on the fifth day or later. If the test result is negative and at least 24 hours have passed without a fever and other symptoms are resolving, then the employee is able to return to work. If the employee is unable to test or if the employer does not require a test, the employee must isolate for 10 full days. Employers must provide exclusion pay for the entire time the employee is isolated due to work-related exposure. Employers may require the employee to take a COVID-19 test on the fifth day or later. When these employees return to work in less than 10 days, they must wear a face mask in the workplace until 10 days have passed since the date that COVID-19 symptoms began or, if asymptomatic, from the date of their first positive COVID-19 test.
- Close Contacts: The new standard eliminates exclusion for close contacts and instead requires employers to “review current CDPH guidance for persons who had close contacts, including any guidance regarding quarantine or other measures to reduce transmission.” CDPH guidelines currently lack exclusion requirements for asymptomatic close contacts. Instead, the CDPH guidelines encourage close contacts to test three to five days after exposure and to wear a face covering for 10 days after exposure. Therefore, employers no longer need to provide exclusion pay to close contacts. Testing remains required for close contacts during outbreaks. If unable to test during outbreaks, the close contacts must follow the return-to-work requirements as if they were positive cases.
- Symptomatic: The third readopted ETS has no specific language on how to treat employees with COVID-19 symptoms. Recent CDPH guidance encourages those with COVID-19 symptoms regardless of vaccination status or previous infection to self-isolate and test as soon as possible to determine infection status, and to remain in isolation while waiting for test results.
- Elimination of Cleaning Requirements: The new ETS eliminates the previous requirement to implement cleaning and disinfecting procedures, which included regular sanitization of commonly touched surfaces such as doorknobs and bathroom surfaces.
- Relaxation of Masking and Physical Distancing Requirements: Masking for employees is no longer required indoors, regardless of vaccination status, unless specifically required by the CDPH. All requirements regarding maintaining six feet of distance from those unable to wear a face covering also have been removed. Lastly, the new definition of “face covering,” unlike in the previous ETS version, now allows for fabric masks that allow light to pass through when held up to a light source.
- No Distinction Based on Vaccination Status: The previous regulations treated employees differently for some purposes depending on vaccination status. However, the third readopted ETS deleted the definition of “fully vaccinated” and no longer distinguishes employer requirements based on employee vaccination status.
- Definition Changes: Cal/OSHA revised the definitions of “infectious period” and “close contact” to allow flexibility if CDPH changes its definitions. In addition, the new ETS adds a definition of a “returned case,” which is an individual with a previous COVID-19 case who returned to work and did not develop any COVID-19 symptoms after returning. A person is only 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. As in the previous ETS version, employers do not need to provide free testing to close contacts (including during minor outbreaks) who are returned cases.
FUTURE PERMANENT STANDARD
Cal/OSHA is expected to replace the third readopted ETS with a permanent standard in 2023. Cal/OSHA has been discussing a potential permanent standard for the past several months, focusing on three possibilities: (1) a permanent infectious disease standard; (2) a permanent pandemic standard; and (3) adopting regulations similar to the third readopted ETS as the permanent standard.
In addition to voting to approve the third readoption of the ETS, the Standards Board on April 21 voted to deny a petition submitted by the Western Steel Council requesting that 8 CCR Section 3203 governing the Injury and Illness Prevention Program (IIPP) requirements for employers be amended to designate CDPH (instead of Cal/OSHA) as the “single designated source” for occupational safety and health requirements for current and future pandemics similar to COVID-19.
IMPLICATIONS FOR EMPLOYERS
Employers in California now have the flexibility to forgo some of Cal/OSHA’s prior requirements, such as the regular disinfecting protocol, exclusion pay to close contacts, and proctored testing. However, employers in California still need to comply with Cal/OSHA’s somewhat unique COVID-19 health and safety requirements, including health screening, mandatory testing in certain circumstances, and contact tracing. Cal/OSHA will post a new set of FAQs soon on its website. Prior ETS FAQs have been helpful.
Furthermore, a new permanent standard could take effect in 2023. Employers should be prepared to comply with those requirements to the extent that Cal/OSHA adopts them. Cal/OSHA plans to publish a draft of the permanent standard within the next several months.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Jacqueline C. Aguilera
Kathryn T. McGuigan
Jason S. Mills
Orange County/Silicon Valley
Daryl S. Landy
San Francisco/Silicon Valley
Michael D. Weil