IMPORTANT! California: Third Readoption of Cal/OSHA ETS for 2022

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All Employers with In-Person CA Employees

EFFECTIVE

May 6, 2022

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Cal/OSHA’s emergency temporary standard (ETS) addressing COVID-19 safety in the workplace has been readopted through the end of the year. Some requirements stay the same (e.g., exclusion pay) and some have significant changes. Here is a summary look at key changes employers should be aware of.

  1. CDPH Rules Control

Since 2020, Executive Order N-84-2020 states that CDPH/local rules control for exclusion and return-to-work periods to the extent they are longer than those in the ETS. Now, the ETS specifically references requirements issued by the California Department of Public Health (CDPH), stating that CDPH rules control to the extent they exist.

  1. Vaccination Status Removed

Previously, safety standards were based on whether or not individuals were “fully vaccinated.” Now, reference to “fully vaccinated” has been completely removed from the ETS, bringing it in line with current CDPH quarantine/isolation guidance. This affects numerous rules:

  • Employers must provide respirators, and employees have a right to request respirators, regardless of vaccination status.
  • Face coverings are not required indoors, regardless of vaccination status, except in certain settings.
  • Workplace exclusion rules (see below) now eliminate reference to vaccination status.
  • Employers must make testing available to all employees with COVID-19 symptoms, regardless of vaccination status.

Keep in mind that local rules may provide more strict rules than the CDPH or ETS.

  1. Other Definitions

Several definitions within the ETS were updated. The definition of “face covering” removed the requirement that fabrics cannot let light pass through when held up to a light source. This eliminates a confusing requirement that may have hindered the use of otherwise approved face coverings (e.g., N95, etc.).

Some terms were changed while the definitions stayed the same. For example, instead of describing someone who recovered from COVID-19 in the last 90 days without returning symptoms, the ETS now uses the term “returned case” for such an individual. Also, “high-risk exposure period” is now referred to as an “infectious period,” which definition remains the same unless CDPH defines the term differently.

  1. Testing Updates

Circumstances surrounding COVID-19 testing have shifted. At-home tests can still be used to satisfy return-to-work criteria, but there must be independent verification of the results – such as a time-stamped photograph of the results. Employer observation, or by an authorized telehealth proctor, is no longer required. Also, employers are not required to provide testing to returned cases who are close contacts.

During an outbreak, employers must make testing available to all employees in an exposed group, regardless of vaccination status. Further, close contacts in an outbreak must have a negative test taken within three to five days after the close contact or must be excluded according to the return-to-work requirements.

During a major outbreak, employers are required to test all employees in an exposed group at least twice a week, rather than just make it available. If they aren’t tested, they must be excluded from the workplace and follow return-to-work requirements.

  1. Workplace Exclusion

The ETS eliminates specific guidance for quarantining close contacts, and instead refers to current CDPH guidance. Employers must still implement policies to prevent close contact transmission.

Return-to-work criteria for COVID-19 cases was also modified to generally mirror current CDPH requirements.

  1. Other Safety Controls

Social distancing of six feet is no longer required when using face covering alternatives (e.g., face shield and a drape); rather, those employees must test at least once weekly. During outbreaks, solid partitions are no longer required if six feet of physical distancing isn’t feasible; rather, employers must determine and implement the amount of distance between people feasible under the circumstances. Similarly, during major outbreaks, when an exposed employee is assigned to work where physical distancing is not maintained, no solid partition is required.

Specific cleaning and disinfecting procedures have been eliminated for cleaning frequently touched surfaces and areas used by a COVID-19 case. However, employers must still comply with CDC cleaning guidance.

Note that similar adjustments were made in the requirements for employer-provided housing and transportation.

  1. What’s Next?

The ETS expires December 31, 2022. Cal/OSHA is expected to work on a permanent standard to take effect next year. Employers will need to adjust current plans, policies, and notices as appropriate and continue to monitor CDPH and local safety rules for compliance.

Action Items

  1. Review the third readoption here.
  2. Review the 3rd revision fact sheet, updated isolation and quarantine fact sheet, and updated FAQ.
  3. Have written COVID-19 prevention plans, policies, and notices updated.
  4. Have appropriate personnel trained on new requirements.
  5. Continue to monitor CDPH and local safety orders and guidelines.
  6. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase