For the second time, the standards-setting board for the California Division of Occupational Safety and Health (“Cal/OSHA”) has readopted, with revisions, the agency’s COVID-19 Prevention Emergency Temporary Standards (“ETS”).  The revised ETS become effective on January 14, 2022, and impose new obligations on nearly all employers in the Golden State.

Background on the Cal/OSHA ETS:

The ETS originally went into effect in November 2020, and were revised in June 2021.  Sheppard Mullin previously wrote about the implementation of the original ETS here and previous revisions to its requirements here.

Many aspects of the ETS remain unchanged in the latest update.  The Cal/OSHA ETS continue to apply to all employees not covered by Cal/OSHA’s Aerosol Transmissible Diseases Standard or employees working alone or at home.  The ETS still require employers to establish, implement, and maintain a COVID-19 Prevention Program (“CPP”), although that CPP must now be updated to reflect Cal/OSHA’s latest changes.  Employers must once again train employees on up-to-date COVID-19-related information, including the employer’s policies and procedures, COVID-19 prevention, and benefits to which employees may be entitled, among other things.  And, as they have for the past year plus, the ETS set standards for various COVID-19-related protocols that employers must follow, including, for example, making testing available in certain situations, requiring face coverings for certain employees, excluding COVID-19 cases from the workplace, and investigating potential exposures and “outbreaks.”

Important Revisions to the ETS:

Although many core requirements of the ETS have not changed, there are several important updates impacting California employers.  The last revisions to the ETS modified various protocols based on the state’s “reopening” and updated CDC guidance.  The most important changes include the following:

Face Coverings:

• Under the revised ETS, employers still must provide face coverings to employees who are not fully vaccinated, which must be worn while indoors or in vehicles, subject to some exceptions. Additionally, employers still must provide face coverings to employees upon request, regardless of the employee’s vaccination status.  However, what may be considered an acceptable “face covering” has been revised for consistency with language in the federal Occupational Safety and Health Administration’s own ETS (“Federal ETS”).  For example, face coverings may be tightly woven fabric or non-woven material of at least two layers, but such masks should not let light pass through when held up to a light source.  Gaiters now may be worn, but must have two layers of fabric or be folded to make two layers.  A face covering must completely cover the nose and mouth and be secured to the head, cannot have any slits or holes, and must fit snugly.

• Some employees may be exempt from face covering requirements due to a medical or mental health condition or disability. In circumstances where the employee would otherwise be required to wear a face covering but for this exemption and where the employee cannot wear a non-restrictive alternative (e.g., face shield with a drape on the bottom), the revised ETS require that employee to (1) remain six feet apart from others; and (2) be fully vaccinated (see new definition below) or be tested at least weekly for COVID-19.

• Employers must also provide face coverings and ensure they are worn by employees when required by orders from the CDPH or applicable local public health order. The CDPH’s recently imposed, mandatory “Guidance for the Use of Face Coverings” currently requires face coverings be worn by all individuals indoors regardless of vaccination status until at least January 15.  Thus, the CDPH’s indoor mask mandate will supersede the ETS’s current face covering guidance until at least January 15 (unless extended).

COVID-19 Testing and Elimination of the “Fully Vaccinated” Exemption:

• The definition of “COVID-19 test” has been revised for consistency with the definition in the Federal ETS. By making this change, the ETS expanded the definition to include home tests and over-the counter tests, but the definition also excludes tests that are self-administered and self-read, unless observed by the employer or authorized telehealth proctor.  Cal/OSHA has yet to issue guidance on this change, which is likely to cause confusion to employers on whether they can still satisfy the requirement to make COVID-19 testing available to employees in certain situations by providing employees with a home test.  Moreover, it is not clear whether employers are required to exclude an employee who tests positive on a self-administered home test.  Presumably, employers should exclude any such employees and instruct them to take a qualifying test and to update the employer on the test result.

• The definition of “fully vaccinated” has been updated to account for certain additional scenarios under which an employee may have been vaccinated, including vaccine trials and mixing of vaccine manufacturers (under certain circumstances). Notably, Cal/OSHA has not yet included a third or booster dose requirement in its definition of “fully vaccinated.”

• The “fully vaccinated” exemption has been eliminated from certain aspects of the revised ETS.

  • Employers must make COVID-19 testing (as newly defined above) available at no cost to employees who had a close contact in the workplace, regardless of vaccination status. The prior version of the ETS only required employers to offer testing to those who were not fully vaccinated before the close contact.

  • Employers must make COVID-19 testing available at no cost to all employees who, during a COVID-19 outbreak or major outbreak, are within the “exposed group.” Previously, employees who were fully vaccinated and did not have symptoms did not need to be offered testing.  As before, testing must occur weekly for outbreaks and twice-weekly for major outbreaks until no longer required under the ETS.

  • As has long been required, employers must maintain a process for screening employees for COVID-19 symptoms. If the screenings are conducted indoors at the workplace, face coverings (as newly defined above) must be worn regardless of vaccination status.  Previously, face coverings were not required for fully vaccinated individuals.

  • Employers who provide transportation to employees, including any transportation to and from different workplaces, jobsites, delivery sites, buildings, stores, facilities, and agricultural fields, now must provide face coverings to all employees in a shared vehicle, regardless of the occupants’ vaccination status.

Exclusions From and Returning to the Workplace:

One of the most significant updates in Cal/OSHA’s revised ETS is with respect to the exclusion of employees from the workplace due to close contact.

• As before, generally speaking, an employer must exclude from the workplace all employees who have had a close contact with a positive COVID-19 case. The revised ETS still provide that an employee need not be excluded from the workplace if they were fully vaccinated before the close contact or recovered from COVID-19 in the past 90 days, and remain asymptomatic.  Now, however, in order to remain at work, those close contacts must wear a face covering and maintain six feet of distance from others for at least 14 days following the last date of close contact.  These employees also must be provided information about any applicable precautions that the CDPH recommends employees take after having close contact with a COVID-19 case.

• Close contacts who are excluded from the workplace, but never developed any COVID-19 symptoms, may generally return to work 14 days after the close contact.  However, they may return earlier in the following circumstances:

  • 10 days have passed since the last known close contact and the employee wears a face covering and maintains six feet of distance from others until 14 days have passed since the last date of close contact; or

  • 7 days have passed since the last known close contact and the employee tests negative for COVID-19 using a COVID-19 test (as newly defined above). The test must be taken at least 5 days after the last known date of close contact.  The employee must wear a face covering and maintain six feet of distance from others until 14 days have passed since the last date of close contact.

• Importantly, the revised ETS have eliminated (1) the exception for those who had a close contact and developed symptoms, but tested negative for COVID-19 using a PCR test (in addition to other requirements); and (2) the exception pertaining to critical staffing shortages.

Employers’ Notice Obligations and the “Worksite”:

The revised ETS contains modified notice obligations and a modified definition for “worksite” to align the ETS with the changes to Labor Code section 6409.6 that resulted from AB 654, which became effective on October 5, 2021.

• For employers obligated under Labor Code section 6409.6 to send a worksite notice of a positive COVID-19 case, Cal/OSHA has adopted the updated definition of “worksite” that takes into consideration the practical realities of some of today’s workplaces. Employers must provide notice within one business day to employees who worked at worksites where there has been a COVID-19 case.  “Worksite” however now expressly excludes locations where an employee worked by themselves and personal residences and other locations from which an employee was working remotely.

• While the definition of “worksite” has been narrowed slightly, the recipients of the notice have been expanded slightly. The revised ETS now require employers to provide the required notice to the authorized representative of: (1) the employee who tested positive or was diagnosed with COVID-19; (2) any employee who had close contact with the COVID-19 case; and (3) any employee who was at the same worksite as a COVID-19 case during the high-exposure period.  Employers previously had to provide the notice to independent contractors and other employers at the same worksite, which remains essentially unchanged.  In particular, employers should make sure they now notify close contacts via written notice in addition to any verbal notification provided.

• In addition, the ETS further clarify that the employee notice must be provided “in the manner the employer normally uses to communicate employment-related information,” which can include email or text message.

Key Takeaways for the New Year:

As cases continue to spike, Cal/OSHA will no doubt be busy in the new year.  Employers should stay tuned for updated FAQs when the revised ETS become effective and look for other updated resources from Cal/OSHA that will help employers understand these new obligations.

Further revisions to the ETS will likely happen again at some point in 2022.  Shortly after the second readoption of the ETS, Governor Newsom signed an executive order permitting a third readoption of the ETS, so long as it does not extend beyond December 31, 2022.  While it was originally understood that the ETS would expire in April 2022 and a permanent COVID-19 standard would be proposed, it now appears a third iteration of the ETS may be on the horizon later this year.

Notably, Cal/OSHA has yet to adopt a vaccinate-or-test approach under which employees must be fully vaccinated or undergo weekly testing, as is required under the Federal ETS for employers with 100 or more employees.  It appears that Cal/OSHA is waiting to see if the lifting of the stay of the Federal ETS survives its challenge at the Supreme Court.  If a stay is not reinstated, Cal/OSHA will be required to adopt and implement its own standards that meet or exceed those imposed by the Federal ETS.  Cal/OSHA’s Standards Board has a meeting scheduled for January 20, 2022, at which time it may discuss these additional updates.

In the meantime, employers should review their current COVID-19 policies and procedures and update them as necessary to comply with the revised ETS by January 14, 2022.  It is especially important that employers ensure their CPP and COVID-19-related policies and procedures are compliant now that SB 606 is effective.  Under the new law, Cal/OSHA is no longer limited to citing a single worksite for violations and can now issue citations for “enterprise-wide” violations for non-compliant policies, procedures, or practices in place at multiple California worksites.  Finally, while this article highlights some of the significant updates under the revised ETS, employers must also take into account the numerous other local, state, and federal orders and guidance that have been issued and should consult experienced employment counsel when updating their policies and procedures.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.