Hunton Employment & Labor Perspectives

On December 16, 2021, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) adopted revisions to the current COVID-19 Prevention Emergency Temporary Standards (“ETS”).  The Cal/OSHA ETS were first approved on November 30, 2020, adopted again with modifications on June 17, 2021, and recently readopted with additional revisions.  The newest version of the ETS will go into effect on January 14, 2022, and will apply to all non-remote workers in California except those covered by the Aerosol Transmissible Diseases standard, such as healthcare workers.

The new revisions to the ETS address the following topics:

• Face Coverings: Cal/OSHA has updated the definition of “face coverings” to now only permit cloth masks in lieu of surgical/medical masks or respirators, if the mask does not allow “light to pass through when held up to a light source.” However, clear face coverings used for accommodation purposes will not have to meet this “light” standard.  Employees with health conditions that prevent them from wearing any type of face covering must physically distance at least six feet from others and either be fully vaccinated or tested for COVID-19 on a weekly basis.
• Testing: The definition of “COVID-19 test” was updated in the revised ETS to exclude both self-administered and self-read tests “unless observed by the employer or an authorized telehealth proctor.” Employees will no longer be able to simply report results of a home-test to their employer.  Additionally, employers must now make COVID-19 testing available to all employees who had close contact with any COVID-19 positive individual in the workplace at no cost and during paid time, even for employees who are fully vaccinated and asymptomatic.  During outbreaks of COVID-19 in the workplace, employers must now make available to fully vaccinated and asymptomatic employees in the exposed group, weekly testing or twice-weekly testing during major outbreaks (e., 20 or more employee cases).
• Exclusion: Fully vaccinated, asymptomatic employees who have had a close contact exposure still do not need to be excluded from the workplace, but only if they wear a mask and maintain six feet from others for 14 days from the date of the close contact.  Employees who have returned to work following a case of COVID-19 no longer need to be excluded from the workplace after the initial onset of symptoms or a positive test result if they wear a mask in the workplace and maintain six feet from others for 14 days from the date of their close contact.
• Return to Work: The new ETS extends the period for non-symptomatic employees to return to work following a close contact exposure from 10 to 14 days, subject to the following exceptions.  First, employees who are on leave with COVID-19, may return to the workplace: 1) after at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without medications, 2) COVID-19 symptoms have improved, and 3) at least 10 days have passed since the onset of symptoms. However, the employee is now required to wear a mask in the workplace and maintain six feet from others for 14 days following the last date of close contact.  Second, COVID-19 positive employees on leave who did not develop symptoms may return to the workplace 10 days following the date of their positive test but are required to wear a mask and socially distance from others for 14 days from their close contact.  Finally, if an employee tested negative for COVID-19 five days after their close contact, they may return to work seven days after the close contact if the employee wears a face covering and maintains six feet of distance from other workers for 14 days following the close contact (i.e., for seven days after their return).

Employers should note that the majority of the requirements provided by the previous ETS remain unchanged.  As the current ETS will remain in effect until January 14, 2022, employers should take the opportunity to review their policies to ensure compliance with the revised ETS before it is implemented.  Though the new ETS will expire on April 14, 2022, it likely will be replaced with a permanent COVID-19 standard.  In addition to the ETS, employers must also continue to follow public health orders on COVID-19 from the California Department of Public Health.  As the pandemic continues, employers should work closely with counsel to monitor local, state, and federal health departments for further changes to COVID-19 health and safety requirements.