By Ilana Morady, Patrick D. Joyce, and Coby Turner
Seyfarth Synopsis: The Cal/OSHA Standards Board (“Board”) has published proposed language for the third adoption of the Cal/OSHA COVID-19 emergency temporary standard (“ETS”), which will be voted on during the upcoming April 21, 2022 Board meeting. The ETS, assuming it is readopted, will expire on December 31, 2022.
The first iteration of the Cal/OSHA ETS took effect on November 30, 2020. It was initially readopted and revised on June 17, 2021, and then again (called the “second readoption”) on December 16, 2021. The second readoption is set to expire on May 6, 2022, after being extended by Executive Order. Normally, an emergency regulation can only be readopted twice, but the Governor issued an Executive Order in December 2021 permitting a third readoption of the ETS, so long as it does not extend beyond December 31, 2022.
The Board will hold a meeting on April 21, 2022, to vote on the new proposed language. In the meantime, the Board is accepting comments on the proposal, but because this is an emergency regulation, changes prior to the vote are unlikely. As with past meetings, it is expected that the Board will vote to approve and adopt the proposed third iteration of the ETS.
Much of the current ETS (which we blogged about here) will remain intact. But, the proposed changes are significant for businesses and employees, and will include removal of some requirements. Highlights include:
- Removing the definition of “fully-vaccinated” from the ETS. This is significant because it means the ETS will no longer distinguish between fully-vaccinated and not-fully-vaccinated employees. In other words, most requirements of the ETS will apply in the same manner regardless of vaccination status, including:
- Testing Requirements: Employers will have to offer testing to all symptomatic employees, and all employees with a workplace close contact, regardless of vaccination status. Testing must be provided at no cost to the employee, and during paid working time. The only exception will be based on whether an exposed employees has recently had and recovered from COVID-19 (see below).
- Provision of Respirators: Employers must offer respirators (e.g., N95s) to employees upon request. Now, all employees regardless of vaccination status are entitled to a respirator for voluntary use, free of charge, if they ask for one.
- A new term, “returned cases,” has been added, referring to employees with naturally-conferred immunity, i.e. employees who have recovered from COVID-19 in the past 90 days and remain symptom free.
- If such employees have had a workplace close contact, employers are not required to offer them testing. Nor are employers required to offer such employees testing if they are part of an outbreak’s “exposed group.”
- Face coverings are no longer required for employees who are not fully vaccinated. This has been the case since February 28, 2022, when Governor Newsom issued an Executive Order overriding the ETS. The third readoption codifies that Executive Order.
- Face coverings will still be required:
- If the CDPH issues orders requiring them;
- For employees who have tested positive and are returning to work before 10 days have passed since their symptoms began, or 10 days since they tested positive if they never developed symptoms; or
- For all employees indoors in an exposed group during a workplace outbreak or major outbreak, or those outdoors who cannot maintain 6 feet of distance from others.
- In situations where face coverings are required but employees are exempted from wearing them, those employees will no longer need to be kept at least six feet apart from others in the workplace, however they will still need to be tested at least weekly.
- The definition of face covering will be updated to remove the requirement that they “not let light pass through when held up to a light source.”
- Removing static requirements for employees who had a close contact, and instead requiring employers to follow current CDPH guidance on close contacts (note these change frequently).
- Changing the term “high risk exposure period” to “infectious period.” Substantively, the change has no impact; it simply aligns the language of the ETS with the language used by public health authorities.
- Cleaning and disinfection requirements are removed.
- During a major outbreak, partitions will no longer be required for exposed groups working together for an extended period but who can’t maintain distance, such as at cash registers, desks, and production line stations.
- The definition of testing will be updated to allow for self-administered and self-read tests for purposes of return-to-work, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
- Inclusion of an explicit requirement that unredacted personal identifying information about COVID-19 cases has to be shared with the local health department, CDPH, and NIOSH immediately upon request.
- Note that many employers have been uncomfortable sharing the breadth of information being requested by some of these entities based on employee privacy concerns, and have been wanting to redact or leave blank. The ETS now says clearly that the information must be turned over.
When Will This End?
The ETS, assuming it is readopted this third time, will expire on December 31, 2022. So while much of the rest of the country moves on from burdensome COVID-19 requirements, California employers will still be under the weight of the Cal/OSHA ETS for the remainder of this year. That includes (but is not limited to) requirements to continue notifying employees any time a COVID-19 case has been onsite during the infectious period, and to continue “exclusion pay” for eligible employees with workplace exposure.
And after December 31, 2022? COVID-19 regulation in California is unlikely to disappear. Word on the street is that Cal/OSHA may seek to make the third readoption a permanent standard until it ultimately replaces it with a more general airborne infectious disease prevention standard. So don’t plan on throwing your notification templates or written COVID-19 Prevention Plan in the trash just yet.
Stay tuned for the rapid fire developments on the workplace safety front in California. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.
Edited by Elizabeth Levy