As COVID-19 restrictions have relaxed in California and many mask mandates have been lifted, Cal/OSHA has updated its Emergency Temporary Standards (ETS). The new ETS, which take effect on May 6, 2022, reflect a general loosening of restrictions without lifting them completely. The new ETS are slated to remain in effect through the end of the year, meaning that for at least another eight months, COVID-19 will continue to drive employer obligations in the state.
The standards continue to require that employers establish, implement and maintain site-specific, effective, written COVID-19 Prevention Programs addressing specific detailed topics.
Background of Earlier Standards
Initially passed on November 19, 2020, and subsequently revised in both June 2021 and December 2021, the Cal/OSHA ETS set forth obligations of all California employers relating to the COVID-19 pandemic, emphasizing prevention and requiring a rapid response to outbreaks in the workplace. The ETS have required, and continue to require, employers to create and implement a written, site-specific COVID-19 prevention program and mandated mask wearing, social distancing, providing for face coverings and other personal protective equipment, training employees and addressing building ventilation standards and other engineering and administrative controls. The ETS have also required, and continue to require, that employers take specific actions upon learning of positive cases in the workplace including investigation, notification and testing requirements.
Updates to Standards
Broadly speaking, the newest ETS eliminate many of the prior distinctions between vaccinated and unvaccinated employees, modify masking and social distancing requirements, remove specific cleaning and disinfection requirements and alter return-to-work criteria. The changes to the ETS are summarized below:
- Face Coverings: Prior versions of the ETS required unvaccinated employees to wear face coverings in the workplace and employers to ensure their use. The updated ETS remove that requirement unless ordered by the California Department of Public Health (CDPH). However, employers are still required to provide face coverings upon employee request, to permit employees to wear them voluntarily (with limited exceptions) and to require their use during both screenings and when certain employees who have tested positive for COVID-19 return to work. The new ETS also slightly modify the definition of permissible coverings.
- Respirators: Employers must now provide respirators for voluntary use to all employees who are working indoors or in vehicles with more than one person upon request. Previous ETS required employers to provide them only to unvaccinated employees. The new ETS also require employers to provide effective training and instruction regarding respirator use.
- COVID-19 Hazards/Cleaning and Disinfecting: The definition of COVID-19 hazards has eliminated objects and surfaces that may be contaminated. Similarly, requirements to implement cleaning and disinfecting procedures and include them in the written COVID-19 Prevention Program have been removed. Ventilation, hand-washing and personal protective equipment requirements remain.
- Exclusion of Close Contacts from the Workplace: The new ETS reflect an intent to align with CDPH guidance and indicate that employer obligations will change as CDPH guidance evolves. Most notably, prior requirements forcing the exclusion of unvaccinated “close contacts” from the workplace have been eliminated, consistent with current CDPH guidance. The new ETS, however, require employers to develop, implement and maintain effective policies to prevent transmission of COVID-19 by persons who had “close contact.”
- Return-to-Work Criteria: Employees who have tested positive for COVID-19 may now return to work more quickly. The timing of return depends upon whether an employee has developed symptoms, when a fever (if any) has resolved and when and whether the employee is tested. In certain circumstances, employees must wear a face covering as a condition of returning to work.The ETS confirm that if the CDPH updates quarantine and isolation criteria, those updates will likewise apply to the ETS. Return-to-work criteria applies across the board, regardless of vaccination status or prior infection. The timing of return depends upon whether the employee developed symptoms and whether the employee has been tested five days after an initial positive test. Regardless of vaccination status, previous infection or lack of COVID-19 symptoms, employees must wear a face covering in the workplace until 10 days have passed since the date that COVID-19 symptoms began or, if the person did not have COVID-19 symptoms, from the date of their first positive COVID-19 test.
- COVID-19 Testing: The new ETS require employers make COVID-19 testing available at no cost to employees with COVID-19 symptoms during employees’ paid time, regardless of vaccination status. Previously, such testing was only required for unvaccinated employees. Under the new ETS, a date-and-time-stamped picture of test results may be used for verification to return to work.Previously, employees who used at-home tests to determine return-to-work eligibility following a COVID-19 diagnosis or exposure had to be observed by their employers while taking the test.
- Social Distancing: Although the new ETS continue to refer to distancing as related to contact to a COVID-19 case, other requirements to maintain a distance of 6 feet from others have been removed.
- Employer-Provided Housing and Transportation: The new ETS make somewhat similar adjustments to employer-provided housing and transportation.
What Has Not Changed
Most of the preexisting ETS criteria remain untouched. The standards continue to require that employers establish, implement and maintain site-specific, effective, written COVID-19 Prevention Programs addressing specific detailed topics. Employers who become aware of a positive COVID-19 case in the workplace must continue to notify other employees and employers of other workers onsite, to report “outbreaks” and “major outbreaks” to local public health officials and to provide testing to employees following such outbreaks. See prior Alerts from December and November 2020 for more information on notices, reporting and testing requirements.
What This Means for Employers
Cal/OSHA’s continuance of Emergency Temporary Standards serve as a reminder that while the response to COVID-19 is evolving, this pandemic is not over. Employers should continue to:
- Prepare a written COVID-19 Prevention Program or review their existing program to ensure compliance with the specific requirements of the standards;
- Evaluate engineering controls and ventilation requirements;
- Prepare for employee COVID-19 cases or exposures, including policies, procedures and notices that meet the requirements of the ETS;
- Plan for required COVID-19 testing of employees;
- Prepare for employee trainings and instructions or update prior materials to ensure compliance with the standards;
- Ensure pay practices are up to date in the event of employee exclusion from the workplace as continuation of pay is currently required; and
- Implement recordkeeping and notification procedures.
Nothing in the updated ETS prohibits an employer from requiring masks in the workplace. Nor do the standards prohibit employees from choosing to wear masks. In the event mask mandates are reinstated by state or local governments, masks at work would be required again.
Employers in the Golden State are encouraged to continue to stay abreast of changes and update policies, practices and notifications as needed.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Lori Ocheltree, Brooke B. Tabshouri, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm’s full disclaimer.