Third Time’s a Charm? COVID-19 Updated Emergency Temporary Standards
The California Occupational Safety and Health Standards Board (OSHSB) approved a third readoption of the Cal/OSHA Emergency Temporary Standards (ETS) which are in effect May 6, 2022 until December 31, 2022. There are significant changes to the ETS readoption and will be the final revision unless the Governor announces new orders. The changes allow for more flexibility in the workplace as it pertains to COVID-19 and the evolving guidelines that have been in place at the workplace for employers.
We have highlighted the main changes to the ETS readoption below:
| Changes to ETS |
|---|
| Disinfecting Protocols Surface and objects are no longer considered a “COVID Hazard.” This will mean that cleaning and disinfecting protocols are no longer required due to contamination purposes. |
| Testing A “COVID Test” is no longer required to be proctored, meaning a self at-home test is sufficient, as long as a photo timestamp is taken. |
| Vaccination Status The definition and reference to “fully vaccinated” employees have been eliminated, all employees are treated equally regardless of their vaccination status. |
| Exclusions The ETS requires employers to exclude positive cases from the workplace but close contacts and exclusions are determined by CDPH regulations. Exclusion from the workplace for close contacts is no longer automatically required. Refer to CDPH Guidance for more detailed information. |
| Testing Positive All positive cases — regardless of vaccination status or prior infection must be excluded from the workplace. The period of time to be excluded is at least five days from symptom onset or date of test if no symptoms. An employee can return to work after day five if they don’t have symptoms and test negative. If an employee cannot test or declines to test, they can return to work after 10 days. Must wear a face-covering around others at work for a total of 10 days after symptoms or test if asymptomatic. |
| Face Coverings The ETS no longer includes “face covering” guidelines and will refer to CDPH Guidelines. The current CDPH Guidelines strongly recommend that all employees wear a mask in indoor settings, regardless of vaccination status, but do not require it unless an outbreak in the workplace occurs and maintaining 6 feet distance is not feasible. The definition of “Face Covering” has been revised to remove the “light test” requirement. That requirement said there could not be any light passing through when held up to a light source. The Face Covering still needs to be made of tightly woven or non-woven fabric of at least 2 layers. Any employee can request an N95 respirator, regardless of vaccination status. Employers are still required to provide training on how to properly wear the N95. If an employer requires all employees to wear face coverings, those with a medical exemption no longer have to physically distance themselves. |
| Exclusion Pay Remains Exclusion pay means the employer must continue wages and benefits for employees excluded from the workplace under the ETS due to a work-related case or close contact. There is no requirement to exclude close contacts unless they become symptomatic or fail to test by day five after a work-related close contact. COVID-19 Supplemental Paid Sick Leave (SPSL) or CA Sick Leave may not be used for this purpose. |
Many of these changes were requested by employers and helped simplify the previous Emergency Temporary Standards. Please note, there are still actions employers need to ensure they continue from the prior ETS, such as, revising your COVID -19 Prevention Program (CPP), training employees on COVID-19, screening employees, notifying all exposed employees of COVID -19 cases within 1 day and making testing available during paid time. For more information, visit the CAL/OSHA’s FAQ page on the CA Dept of Industrial Relations website.
How SDHRC Can Help
Although COVID protocols may not be as strict, continuous changes may be difficult for many businesses to navigate. Our HR Consultants are current in these protocols and we have a consultant focused on COVID-19 updates to ensure our team and clients are kept informed. Visit our “COVID Updates Series” page for the latest updates and contact us today for more specialized questions.
Authors: Traci Hagan and Marsi Harris
