Cal/OSHA Extends and Revises the Emergency Temporary Standards (ETS)
Source: California Employment Law Report, by Anthony Zaller
Cal/OSHA readopted the COVID-19 Prevention Emergency Temporary Standards (ETS) on December 16, 2021. While a large portion of the existing ETS remains in place, there were a few changes made in this newly adopted ETS. The new ETS approved on December 16 will take effect on January 14, 2022. This Friday’s Five provides a summary of some of key revisions employers must be aware of:
1. Testing requirements are modified.
The revised ETS provide that an acceptable COVID-19 test cannot be self-administered and self-read. The employer or an authorized telehealth proctor must observe a self-administered test for it to qualify as a COVID-19 test under the ETS.
The revised ETS obligates employers to provide testing to employees if they have had a close COVID-19 contact, even if they are fully vaccinated. This is a change from the prior version of the ETS that did not require employer to provide testing to employees who were fully vaccinated.
The revised ETS also requires employers to provide testing at no costs to all employees during an outbreak, even those who were fully vaccinated. The prior version of the ETS did not require employers to provide testing to fully vaccinated employees who did not have symptoms during an outbreak.
2. Face covering definition has been updated (in addition to California’s updated mask mandate in place from December 15, 2021 through January 15, 2022).
The definition for face covering was updated to include a requirement that the face covering is made of “fabrics that do not let light pass through when held up to a light source.” These include surgical mask, medical procedure masks, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least tow layers. Gaiters are permitted if they have “two layers of fabric or be folded to make two layers.”
Separate from the ETS, California’s Department of Public Health implemented a new mandate on face coverings, requiring all individuals, vaccinated and unvaccinated, to wear a mask in all indoor public settings in California. The guidance applies to workplaces regardless of whether they serve the public or are open to the public. This requirement is in place from December 15, 2021 through January 15, 2022. More information about the face covering requirements, visit the CDPH website here.
3. Worksite definition is clarified.
The ETS clarified in the definition of “worksite” that it does not include “location where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely.” This revised definition potentially narrows the number of employees that notice must be provided when there is COVID-19 at the workplace.
4. Requires face coverings during screenings, even for vaccinated people.
Under the revised ETS, employers must ensure that workplace screeners and employees being screened for COVID-19 must wear face coverings. The prior version of the ETS permitted the screeners and employees not to wear face coverings if they were fully vaccinated.
5. Exclusion from the workplace requirements modified.
In terms of employer’s obligations to exclude employees from the workplace, the revised ETS changed these requirements:
The revised ETS requires fully vaccinated employees who have a close contact to be excluded unless they (1) do not develop symptoms, (2) wear a face covering and maintain six feet of distance from others for 14 days following the close contact. The requirement that they must wear a face covering is a new requirement that was not included in the prior ETS.
Likewise, employees who have recovered from a COVID-19 infection in the prior 90 days and do not have symptoms, can return to work after a close contact as long as they wear a face covering and maintain six feet of distance from others for 14 days following the close contact.
Not Fully Vaccinated
Employees who have not been vaccinated, may return to work after a close contact if they do not develop symptoms, and 14 days have passed since the last known close contact. However, if ten days have passed since the last known contact and the person wears a face covering and maintains six feet of distance from other for 14 days following the last close contact they may return to work. They may also return to work if seven days have passed since the last known close contact and they test negative for COVID-19 with a specimen taken at least five days after the last known close contact, and the person wears a face covering and maintains six feet of distance from others at the workplace for 14 days following the last known close contact.
Employers are reminded that the other portions of the prior ETS will still be in place. For example, employers must still develop a written COVID-19 Prevention Program, provide training to employees, provide certain COVID-19 disclosures to employees, and pay exclusion pay to employees excluded from work due to a workplace exposure.