The Cal/OSHA Standards Board on December 16 voted to approve the second readoption of the California COVID-19 Prevention Emergency Temporary Standards (ETS) during its monthly public meeting. The revised ETS will not adopt the federal OSHA ETS or include a mandatory vaccination requirement for employers, but will include stricter requirements for employers than the current version.

SECOND READOPTION OF THE CAL/OSHA COVID-19 ETS

The Standards Board voted almost unanimously during the December 16 meeting to revise the existing version of the California ETS. This second readoption of the ETS includes substantive changes to, among other items, various definitions, exclusion exemption requirements, and return-to-work criteria.

The Standards Board previously readopted the ETS on June 17, 2021, with a set expiration date of January 14, 2022. That readoption had loosened many restrictions for vaccinated workers. With the second readoption of the ETS, employers in California can now expect stricter regulations on mask-wearing and physical distancing, especially for employees potentially exposed to a positive COVID-19 case in the workplace. The second readoption will be effective January 14, 2022, with an expiration date of April 14, 2022.

KEY CHANGES IN THE SECOND READOPTION

The significant substantive changes of the second readopted Cal/OSHA ETS (hereafter, the “revised ETS”) include the following:

Deletion of some prior distinctions between vaccinated and unvaccinated employees

The revised ETS will require vaccinated workers to wear a mask during health screenings indoors, which will align with the requirements for unvaccinated workers under the current ETS.

Employers also will be required to make COVID-19 testing available at no cost to all (including vaccinated) employees who had a close contact with a positive case in the workplace (the existing ETS provided an exemption from mandatory testing of asymptomatic vaccinated employees, even if they were close contacts).

The revised ETS further now clarifies that employers should also provide vaccinated asymptomatic close contacts with information on benefits, such as any benefits available under legally mandated sick and vaccination leave, workers’ compensation law, local governmental requirements, the employer’s own leave policies, and leave guaranteed by contract. However, the exception for mandatory testing remains for workers who previously tested positive for COVID-19 and remained symptom-free for 90 days.

While the existing ETS requires testing of unvaccinated employees only during an outbreak, the revised ETS requires employers to also test vaccinated individuals in the exposed group during an outbreak.

Changes to the exceptions for exclusion requirements for asymptomatic vaccinated close contacts

In the existing ETS, asymptomatic fully vaccinated close contacts do not need to be excluded from the workplace. The revised ETS will now impose three requirements for asymptomatic vaccinated close contacts to avoid exclusion from the workplace:

  1. Wear a face covering at the workplace for 14 days following the last date of the close contact
  2. Maintain six feet of distance from others at the workplace for 14 days following the last date of close contact
  3. Receive information from the employer about any additional applicable precautions from the California Department of Public Health (CDPH)

These exclusion exception requirements also apply to close contacts who previously had COVID-19 and have remained symptom-free for 90 days either after the initial onset of COVID-19 symptoms (for those who were previously symptomatic) or 90 days after the positive test (for those who never had symptoms).

Revisions to the return-to-work requirements for close contacts

The revised ETS states that an asymptomatic close contact (regardless of vaccination status) who is excluded from the workplace may return to work in one of the following ways:

  • Return after 14 days have passed since the last known close contact
  • Return when 10 days have passed since the last known close contact, but wear a face covering and maintain six feet of distance from others while at the workplace for 14 days following the last date of close contact
  • Return when seven days have passed since the last known close contact if five or more days after the last known contact the employee tested negative for COVID-19—but that employee still must wear a face covering and maintain six feet of distance from others while at the workplace for 14 days following the last date of close contact

The existing ETS does not include the face covering and distancing requirements.

COVID-19 Testing

Cal/OSHA will expand the definition of “COVID-19 test,” which—like the federal OHSA ETS—will allow self-administered and self-read tests, but only if the employer or an authorized telehealth proctor observes the test. Tests that will satisfy this requirement 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.

‘Fully Vaccinated’ Employees

Cal/OSHA will expand the definition of “fully vaccinated” to include employees who were vaccinated as part of a clinical trial at a US site with an active (not placebo) COVID-19 vaccine that has been subsequently independently confirmed (e.g., by a data and safety monitoring board) or if the clinical trial participant at US sites had received a COVID-19 vaccine that is neither approved nor authorized for use by FDA but is listed for emergency use by WHO. The definition also will allow employees to combine approved types of COVID-19 vaccines so long as the second dose of the series is not received earlier than 17 days (21 days with a four-day grace period) after the first dose.

Required distancing for employees exempt from wearing face coverings

Under the revised ETS, if an employee is exempted from wearing a face covering due to a medical condition, the exempted employee should maintain at least six feet of distance from all other persons, and also be either fully vaccinated or tested weekly for COVID-19 during paid time—at no cost to the employee.

Required notices to employees and certain third parties when learning of a positive COVID-19 case in the workplace

Cal/OSHA will continue to conform the notice requirements of Labor Code section 6409.6 to this revised ETS. The revised ETS incorporates recent amendments to section 6409.6, including clarifications to the employer obligations of providing information about COVID-19-related benefits and the cleaning and disinfection plan to all employees who were on the premises at the same worksite as the positive case.

The section 6409.6 amendments incorporated into the revised ETS also clarify that worksites do not include “locations where the [positive COVID-19 case] 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.”

Definition of ‘Face Coverings

The revised ETS specifies that appropriate face coverings should completely cover the nose and mouth and be secured to the head with ties, ear loops, or elastic bands that go behind the head.

Furthermore, the face covering should have no slits, visible holes, or punctures, and “must fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face.”

Finally, the revised ETS clarifies that any face covering that is a tightly woven fabric or non-woven material of at least two layers must “not let light pass through when held up to a light source.”

Cal/OSHA is preparing FAQs on the revised ETS’s requirements. Cal/OSHA’s published FAQs with the prior versions of the ETS have been informative and thorough.

FUTURE COVID-19 PERMANENT STANDARD

The Standards Board also is revising its proposal for a permanent standard for COVID-19 regulations. That final standard will be presented to the Standards Board in March 2022, with the goal of becoming effective in mid-April when the second readopted ETS is set to expire.

This permanent standard, if approved, will be in effect for two years. Currently, the Standards Board is reviewing the economic impact of a permanent standard. Cal/OSHA recently published an initial draft of these permanent standards. During the public comment portion of the December 16 Standards Board meeting, there was a substantial amount of discussion regarding the draft’s removal of mandatory exclusion pay for workers who are required to be excluded from the workplace.

Previous Standards Board meetings have addressed potentially incorporating certain COVID-19 safety measures within the already-required Injury Illness Prevention Plan (IIPP) for employers. Relatedly, the Western Steel Council recently filed a petition with the Standards Board proposing an OSHA standard seeking to replace the Cal/OSHA ETS entirely with a revision to the IIPP regulations (8 C.C.R. § 3203) that would require employers to follow the latest public health agency guidance instead of a separate permanent Cal/OSHA COVID-19 prevention standard. In response to this petition Cal/OSHA is drafting a report that will be completed by early January 2022.

During the Standards Board meeting, there was a lengthy panel discussion on the future of alternative approaches to a permanent COVID-19 standard after the revised ETS expires. The panel, which consisted of stakeholders outside of the Standards Board, analyzed and provided recommendations on three potential alternative approaches:

  1. A permanent COVID-19 standard with a two-year term of effectiveness
  2. Reliance on existing IIPP mandates, possibly by incorporating a general COVID-19 standard into the existing IIPP requirements
  3. A standalone Aerosol Transmissible Diseases (ATD) standard

The panel members had differing views on which of these methods are most effective.

The Standards Board will continue assessing the potential methods for a permanent regulation. The Standards Board likely will not reach a decision on this issue until shortly before the revised ETS is set to expire in April 2022.

CAL/OSHA’S POSSIBLE ADOPTION OF THE FEDERAL OSHA’S ETS

As a State Plan, Cal/OSHA is required under 29 CFR § 1953.5(b)(1) to adopt a State ETS that is at least as effective as the federal standards. Originally, the Standards Board meeting scheduled for November 18 included an agenda item that would have included adopting the vaccine-or-test requirement for employers of 100 or more in the federal OSHA ETS. The Standards Board was prepared to adopt the federal ETS through an expedited “Horcher” adoption process. However, due to the ongoing litigation and to the Biden-Harris administration’s suspended enforcement of the federal OSHA ETS, Cal/OSHA has paused on adopting the federal OSHA ETS.

The Standards Board indicated that it will closely monitor the ongoing litigation regarding the federal OSHA ETS. If the federal OSHA ETS is upheld, Cal/OSHA likely will then return to adopting the federal standards—including the vaccine-or-test requirements—and potentially include stricter requirements than in the federal OSHA ETS.

FACE MASK MANDATE

On December 13, 2021, the CDPH issued updated guidance requiring all people—regardless of vaccination status—to wear face coverings in “indoor public settings” from December 15, 2021 to January 15, 2022.

On December 15, CDPH posted updated FAQs clarifying that this mandate applies to all California workplaces, “regardless of whether they serve the public, or are open to the public,” in local health jurisdictions that did not already have in place health officer orders that require masking indoors regardless of vaccination status.

The Standards Board emphasized during its recent meeting that the existing ETS incorporates CDPH’s updated mandate through the ETS’s language in 8 C.C.R. section 3205(c)(6)(B), which states that “[e]mployers shall provide face coverings and ensure they are worn by employees when required by orders from the CDPH.”

IMPLICATIONS FOR EMPLOYERS

Employers in California should prepare to adhere to the revised Cal/OSHA ETS regulations approved at the December 16 Standards Board meeting. Employers also should prepare for Cal/OSHA to adopt and possibly expand on the federal OSHA’s “shot-or-test” mandate if ultimately upheld in the federal court appellate process.

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