Cal/OSHA Announces New COVID Requirements for Employers

The first version of the Division of Occupational Safety and Health’s (“Cal/OSHA’s”) COVID-19 Emergency Temporary Standards (“ETS”) were adopted on November 30, 2020.  The ETS sets forth requirements for employers and employees on a wide range of issues related to COVID-19, including masking requirements, when testing is required, and steps to take in the event of an outbreak in the workplace.

The ETS have since been revised and readopted twice, most recently on December 16, 2021 (“2^nd Revised ETS”).  This newest iteration of the ETS will take effect on January 14, 2022.  In the meantime, the current version of the ETS remains in effect.

Some of the key changes in the 2^nd Revised ETS are:

Face Covering

• In addition to the requirements for face coverings that are already in place, the 2^nd Revised ETS added that face coverings must:
  • Fit snugly over the nose, mouth, and chin (and completely cover the nose and mouth);
  • Be secured to the head with ties, ear loops, or elastic bands that go behind the head;
  • Be a solid piece of material without slits, visible holes, or punctures; and
  • Pass the “light test,” meaning that the mask does not let light pass through when it is held up to a light source.
• The “light test” requirement does not apply to clear face coverings, cloth face coverings with a clear plastic panel, or face coverings that otherwise meet the criteria for a permissible face covering and “which may be used to facilitate communication with people who…need to see a speaker’s mouth or facial expressions to understand speech or sign language[.]”
• Employees who have a medical condition that prevents them from wearing a permissible face covering or “an effective non-restrictive alternative,” must maintain at least 6 feet of distance from all other persons in the workplace and be either fully vaccinated or tested at least weekly for COVID-19 during paid time and at no cost to the employee.
• NOTE – The current ETS state that fully vaccinated employees do not need to wear face coverings indoors. While the 2^nd Revised ETS do not alter this requirement, employers should note that the California Department of Public Health has mandated universal masking indoors between December 15, 2021 and January 15, 2022.  Fully vaccinated individuals are not exempt from this mandate.

Permitted Testing

• The 2^nd Revised ETS clarify that employers may not accept the results of a COVID-19 test that was both administered and read by the employee, unless the employee was observed by either the employer or a telehealth proctor (if authorized by the employer).

Procedures After a Close Contact

• Currently, fully vaccinated employees who have close contact with an individual who is confirmed to have COVID-19 do not have to stay home from work as long as they remain asymptomatic. This remains true under the 2^nd Revised ETS, but such employees must now also do the following in order to remain in the workplace:
  • Wear a face covering at the workplace for 14 days following the last date of close contact; and
  • Maintain six feet of distance from others at the workplace for 14 days following the last date of close contact.
• Individuals who tested positive for COVID-19, met the return-to-work criteria in the ETS, and then experienced a close contact within 90 days may also remain in the workplace under the 2^nd Revised ETS if they wear a face covering and maintain six feet of distance from others for 14 days after the last date of close contact.
• If an employee who falls into one of the categories above remains in the workplace after a close contact, the employer must provide the employee with information about any applicable precautions recommended by the California Department of Public Health for persons with close contact.
• Under the 2^nd Revised ETS, employers will be required to offer entirely free testing to all employees who have close contact with an individual in the workplace, regardless of vaccination status. Currently, employers do not have to make testing available to close contacts who are vaccinated and asymptomatic.

Returning to Work After a Close Contact

• Under the 2^nd Revised ETS, employees who experience a close contact, are not eligible to remain in the workplace as described above (or are excluded for some other reason), and remain asymptomatic, will be able to return to work when:

• 14 days have passed since the employee’s last known close contact; or
• 10 days have passed since the employee’s last known close contact and the employee wears a face covering and maintains six feet of distance from others in the workplace until 14 days have passed since the employee’s last known close contact; or
• 7 days have passed since the employee’s last known close contact, and the employee tested negative for COVID-19 using a specimen taken at least 5 days after the employee’s last known close contact, and the employee wears a face covering and maintains six feet of distance from others in the workplace until 14 days have passed since the employee’s last known close contact.

Definitions

• The 2^nd Revised ETS specifies that the term “worksite” does not include locations where an employee works alone or remote work locations, such an employee’s residence.
• Fully Vaccinated. The 2^nd Revised ETS expands the definition of “fully vaccinated” to include employees who:
  • Received an active vaccine as part of a U.S. clinical trial (and who have obtained independent confirmation that they did not receive the placebo in the trial);
  • Participated in a U.S. clinical trial and received a vaccine that was neither approved nor authorized for use by the FDA, but is listed for emergency use by the WHO;
  • Received any combination of approved types of COVID-19 vaccines and the second dose of the series was administered at least 17 days after the first dose.

Status of Permanent Standards

Shortly after the 2^nd Revised ETS was adopted on December 16, Governor Gavin Newsom issued an executive order (which you can read in full here) allowing the ETS to be readopted a third time, provided that any third readoption does not extend beyond December 2022.

Prior to Governor Newsom’s order, Cal/OSHA had expressed that its goal was to develop permanent standards in time to replace the ETS when they are scheduled to expire in mid-April 2022.  However, now that Governor Newsom has paved the way for a third extension of the ETS, it appears very likely that the ETS will be re-adopted a third time and that the adoption of permanent standards will be delayed.

What Should Employers Do Now?

Employers should familiarize themselves with the new requirements in the 2^nd Revised ETS and prioritize the creation and implementation of any necessary procedures to ensure compliance on or before the January 14, 2022 effective date.  Cal/OSHA has issued hundreds of citations (often with significant penalties) since the ETS were first adopted in November 2020, and there is no reason to expect that Cal/OSHA will not maintain a similar enforcement strategy in the future.