On October 20, 2021 California’s Division of Occupational Safety and Health (Cal/OSHA) published the draft text for the proposed second re-adoption of its COVID-19 Emergency Temporary Standard (“proposed ETS”). The proposed ETS seeks to continue the current Emergency Temporary Standard (“current ETS”) that was effective as of June 17, 2021 with some key changes. The proposed ETS seeks to update requirements in light of the Delta variant and bring the current ETS in alignment with COVID-19 guidance issued by the California Department of Public Health. If adopted, the proposed ETS will be effective January 14, 2022 to April 14, 2022. Simultaneously, the agency is considering a proposed permanent standard that would retain many of the same provisions for at least a two-year period.

Summary of Key Changes under the Proposed ETS

The proposed ETS largely retains the same provisions as the current ETS, including local health department reporting and other protocols following an “outbreak” of three or more cases within an exposed group. However, Cal/OSHA is proposing several key changes that could impact California employers.

Screening: Under the proposed ETS, employees would be required to wear a mask during indoor daily health screenings regardless of vaccination status.

Employer-Provided Testing: The proposed ETS would require employers to provide free testing on paid time for all close contacts and all members of exposed groups following outbreaks, regardless of vaccination status or symptoms.

Exclusion Requirements for Asymptomatic Close Contacts: The proposed ETS includes a number of changes to the criteria for allowing asymptomatic close contacts to return to work. As the baseline requirement, asymptomatic close contacts may return to the workplace 14 days following the close contact. In addition, the proposed ETS would allow such close contacts to return to work earlier under certain circumstances:

• Return to work 10 days after last close contact: Permitted if the close contact continues to wear a face covering and maintain physical distancing until 14 days have passed.

• Return to work 7 days after last close contact: Permitted if the close contact obtains a negative PCR test taken at least five days after the last contact, and continues to wear a face covering and maintain physical distancing until 14 days have passed.

• Return to work immediately: At their discretion, employers may allow fully vaccinated personnel to return to work immediately provided that they continue to wear a face covering and maintain physical distancing until 14 days have passed since the close contact, and get a COVID-19 test three to five days after the close contact. Employers may also allow personnel who had COVID-19 in the past 90 days to return to work immediately provided that they continue to wear a face covering and maintain physical distancing until 14 days have passed since the close contact.  Personnel permitted to return to work under these exceptions should be provided with information about any applicable precautions recommended by CDPH for persons with close contacts.

Future “Permanent” COVID-19 Standard

In tandem with the proposed ETS, Cal/OSHA is also considering a proposed “permanent” COVID-19 standard which, once finalized, would replace any ETS that is in place and last for at least two years. The major difference between the proposed permanent standard and the ETS is that the permanent standard does not include a requirement that employers continue to provide wages to personnel who have been excluded from the workplace. Cal/OSHA has not published any timeline regarding the expected finalization date for the proposed permanent standard.