CAL/OSHA Emergency Temporary Standards (ETS) Readopted
On December 16, 2021, the CA Department of Industrial Relations released a statement adopting revisions to the COVID-19 Prevention Emergency Temporary Standards to take effect beginning January 14, 2022. For California employers, this means significant changes regarding the use of face coverings, testing requirements, exposure guidance and return to work procedures and practices.
Although vaccinated employees are not currently required to wear face coverings in the workplace, employers should be aware that on December 15, 2021, a California Department of Public Health state-wide universal indoor masking order went into effect and was just extended to February 15, 2022. This means that employers in California will need to require universal indoor masking for both employees and/or customers, regardless of vaccination status. With COVID-19 cases surging across the country, the CA Health Department and County of San Diego have updated the Isolation of All Persons With or Likely to Have COVID-19 and Quarantine of Persons Exposed to COVID-19 guidance. The ever-changing requirements and evolving guidance can make it difficult to understand what standards employers are obligated to follow in the workplace. For employers, CAL/OSHA determines what safety and protection measures employers should implement. The ETS has not been revised to include the new guidance but stay tuned!
It is important that all CA employers ensure their COVID Prevention Plan is updated and prepare to comply with the readopted revisions to the ETS as follows:
| Current as of June 2021 | Effective January 14, 2022 |
|---|---|
| Fully vaccinated employees who were not experiencing COVID-19 symptoms from its close contact were excluded from employer-paid testing requirements | Employers will need to provide testing to fully vaccinated employees in a close contact/exposed group regardless of symptom status |
| Employers were not required to exclude employees with a close contact exposure from the workplace if they were fully vaccinated and symptom-free and no social distancing or face coverings were required | Employers are not required to exclude employees with a close contact exposure from the workplace if they were fully vaccinated, but employees WILL be required to wear face-covering and maintain social distancing for 14 days |
| Little guidance was provided regarding testing protocols | Tests that will satisfy the definition of a “COVID-19 test” include: those with specimens that are processed by a laboratory (including home or on-site collected specimens processed either individually or as pooled specimens), proctored over-the-counter tests, point-of-care tests, and tests where specimen collection and processing is either administered or observed by an employer |
| Face covering was defined as – A surgical mask, medical procedure mask, voluntarily worn respirator or a tightly woven fabric or non-woven material of at least two layers with no visible holes or openings and that covers the nose and mouth. This does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar or single layer of fabric | Face covering definition will also include the following – must not let light pass through when held up to a light source, completely cover the nose and mouth, be secured to the head with ties, ear loops or elastic bands that go behind the head, have no slits or punctures and fit snugly over the mouth, nose and chin with no large gaps on the outside of the face. This may mean that cloth masks will no longer be acceptable |
| Unvaccinated employees with mask accommodations must wear an effective non-restrictive alternative, such as a face shield with a drape on the bottom, if the condition or disability permits it | In addition, if the employee’s medical or mental health condition or disability does not permit the employee to wear a non-restrictive alternative, the employee must be at least six feet apart from all other persons and either fully vaccinated or tested at least weekly for COVID-19 during paid time and at no cost to the employee |
| “Close contact” with a COVID-19 positive individual should be excluded from the workplace with the exception of: Fully vaccinated and who do not develop COVID-19 symptoms or previously had COVID-19 within the last 90 days | Fully vaccinated and those that do not develop COVID-19 symptoms or previously had COVID-19 within the last 90 days who have been in close contact with a COVID-19 positive individual need not be excluded if they wear a face covering and maintain six feet of distance from others at the workplace for 14 days following the last date of close contact |
| Employees who are considered a “close contact” and are not fully vaccinated and who have not had COVID-19 in the past 90 days and are asymptomatic must quarantine but may return to work after 10 days have passed since the last known close contact | Employees who are a “close contact” and are not fully vaccinated and who have not had COVID-19 in the past 90 days and are asymptomatic must quarantine but may return to work after: • 14 days have passed since the last known close contact • 10 days have passed since the last known close contact and the employee wears a face covering and maintains six feet of distance while at the workplace until 14 days following the last date of close contact or • 7 days have passed since the last known close contact and the employee tested negative for COVID-19 at least five days since the last known close contact, wears a face covering and maintains six feet of distance while at the workplace until 14 days have passed following the last date of close contact |
| “Fully vaccinated” means the person has received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series, a single dose COVID-19 vaccine that was FDA approved, an EUA from FDA or, for those vaccinated outside of the United States, listed for emergency use by the World Health Organization (WHO) | “Fully vaccinated” now means: • A person’s status two weeks after completing primary vaccination with a COVID-19 vaccine with at least the minimum recommended interval between doses in accordance with the approval, authorization or listing that is: (1) approved or authorized for emergency use by the FDA, (2) listed for emergency use by the World Health Organization (WHO) or (3) administered as part of a clinical trial; or • A person’s status two weeks after receiving the second dose of any combination of two doses of a COVID-19 vaccine that is approved or authorized by the FDA or listed as a two-dose series by the WHO. The second dose must not be received earlier than 17 days (21 days with a 4-day grace period) after the first dose |
With the many ETS revisions and the related guidance from Federal, State and County it is important to be mindful that the Cal/OSHA’s ETS is separate and distinct from the federal ETS and other regulations. If you have questions or need clarification, please reach out to SDHRC and we will be happy to help!
Author: Marsi Harris
