At its upcoming April 21, 2022 meeting, the California Division of Occupational Safety and Health (“Cal/OSHA”) Standards Board will decide whether to readopt the fourth iteration of its COVID-19 Emergency Temporary Standards (“ETS”), which first went into effect on November 30, 2020.  The ETS apply to all employees not covered by Cal/OSHA’s Aerosol Transmissible Disease Standard or employees working alone or at home, and require employers to establish, implement, and maintain a COVID-19 Prevention Program (“CPP”), among other things.  Sheppard Mullin previously wrote about the implementation of the original ETS here, and previous revisions to its requirements here and here.

After the Board readopts the new version of the ETS, it will replace the current version on May 6, 2022.  And while many aspects of the current ETS would remain unchanged, there are some notable proposed changes, including but not limited to the following:

Vaccination Status:

Under the current ETS, certain requirements differ based on an employee’s vaccination status.  However, under the proposed ETS, an employee’s vaccination status no longer matters.  The definition of “fully vaccinated” has been removed.  Any employee can now request a respirator from their employer for voluntary use, and effective training and instruction must be provided to employees who make this request.  Further, the proposed ETS require employers to make COVID-19 testing available at no cost to all employees with COVID-19 symptoms during employees’ paid time.  This revision represents a significant departure that unfortunately will require employers to foot the bill for testing employees for potential exposures that occurred outside the workplace.

Face Coverings:

Under the proposed ETS, employers no longer need to provide face coverings to employees who are not fully vaccinated to wear indoors or in vehicles.  However, employers must still provide face coverings and ensure they are worn by employees when required to do so by orders from the California Department of Public Health (“CDPH”) or applicable local public health order.  The CDPH’s “Guidance for the Use of Face Coverings” currently requires face coverings be worn only in specific high-risk settings, such as healthcare settings.  Under the proposed ETS, face coverings can also now be made of fabrics that let light pass through.

COVID-19 Tests:

Under the proposed ETS, to meet the return-to-work requirements, a COVID-19 test may now be both self-administered and self-read, but only if another means of independent verification of the results can be provided.  The example noted is a time-stamped photograph of an employee’s COVID-19 test results.  Except for meeting the return-to-work criteria, there is no restriction on the type of COVID-19 test that can be used as long as it is approved (including by way of an Emergency Use Authorization) by the United States Food and Drug Administration to detect current infection and administered in accordance with authorized instructions.  That said, this change may allow employers to curb some abuse of the new COVID-19 Supplemental Paid Sick Leave law, which allows employers to require a positive test result in order to receive a second bank of paid leave but only requires minimal documentation.

Close Contacts:

Under the proposed ETS, employers still must make testing available at no cost to any close contact, but there is no longer any requirement to exclude close contacts from the workplace.  Instead, employers must review and follow CDPH guidance for persons who had close contacts, including any guidance regarding quarantine or other measures to reduce transmission.  Currently, the CDPH’s quarantine guidance instructs that asymptomatic individuals who are not fully vaccinated and boosted must quarantine (stay home) for five days.  Thus, while the proposed ETS may no longer require an employer to exclude close contacts, the CDPH’s current guidance, which the proposed ETS requires employers to follow, may still require exclusion (and knowledge of an employee’s vaccination status).  Employers are also required to develop, implement, and maintain effective policies to prevent transmission of COVID-19 by persons who had close contacts.

COVID-19 Cases:

The proposed ETS clarify that for COVID-19 cases, regardless of vaccination status or previous infection,

• Those who do not develop COVID-19 symptoms or whose COVID-19 symptoms are resolving shall not return to work until: (1) at least five days have passed from the date the symptoms began or, if the person does not develop symptoms, from the date of the first positive test; (2) at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever reducing medications; and (3) a negative test from a specimen collected on the fifth day or later is obtained. If the employee is unable to test or the employer chooses not to require a test, 10 days must have passed from the date the symptoms began or, if the person does not develop symptoms, from the date of the first positive test.

• Those whose COVID-19 symptoms are not resolving, may not return to work until: (1) at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medication; and (2) symptoms are resolving or 10 days have passed from when the symptoms began.

Further, a COVID-19 case shall wear a face covering in the workplace until 10 days have passed since the date that the symptoms began or, if the person did not have symptoms, from the date of their first positive test.

Importantly, Executive Order N-84-20 replaces, for the duration of the Executive Order, the exclusion periods and requirements noted above with the CDPH isolation and quarantine requirements or applicable local health officer isolation and quarantine requirements, whichever is longer.  Employers should consult with their legal counsel regarding which isolation and quarantine requirements apply to them.

Cleaning and Disinfecting:

Under the proposed ETS, there are no longer cleaning and disinfecting requirements, including the previous requirement to clean areas used by a COVID-19 case.  Notably, the definition of “COVID-19 hazard” no longer includes objects or surfaces that may be contaminated with COVID-19.  Despite this change, the potential exposure notice that Labor Code section 6409.6 requires employers to send employees still must describe an employer’s cleaning and disinfecting efforts.  Presumably, Cal/OSHA’s guidance will address this apparent conflict when it issues guidance on the proposed ETS.

Outbreaks and Major Outbreaks:

Under the proposed ETS, an “outbreak” has been redefined as 3 or more COVID-19 cases within an exposed group in the workplace during the infectious period over a 14-day period.  Previously, the ETS defined an outbreak as 3 or more COVID-19 cases within an exposed group in the workplace during the high-risk exposure period over a 14-day period.  Unless otherwise defined by the CDPH in which case the CDPH definition will apply, “infectious” period means, (1) for COVID-19 cases who develop symptoms, from two days before they first develop symptoms until all of the following are true: it has been 10 days since symptoms first appeared; 24 hours have passed with no fever, without the use of fever-reducing medications; and symptoms have improved, and (2) for COVID-19 cases who never develop symptoms, from two days before until 10 days after the specimen for their first positive test was collected.

In an outbreak setting, employers must still make COVID-19 testing available at no cost to all employees in the exposed group, regardless of vaccination status.  There are some exceptions, including those who were not present at the workplace during the relevant 14-day period, and now those who are considered to be a “returned case.”  Notably, employees who had close contacts must have a negative test taken within 3-5 days after the close contact or must be excluded and follow the return-to-work requirements.

For major outbreaks (defined under the proposed ETS as 20 or more employees within an exposed group in the workplace during the infectious period over a 30-day period), employees in the exposed group are required to be tested or must be excluded and follow the return-to-work requirements.  Lastly, employers no longer need to consider using cleanable solid partitions when social distancing cannot be maintained.

Returned Cases:

Under the second iteration of the ETS that became effective in June 2020, employees who had returned to work after having COVID-19 had some relaxed protocols due to their temporary immunity (90 days).  The relaxed protocols were similar to those of fully vaccinated employees.  However, the third iteration of the ETS removed the relaxed protocols for those returned employees.  The proposed ETS contains a definition for “returned case,” which means a COVID-19 case met the ETS return-to-work criteria and did not develop any COVID-19 symptoms after returning.  Notably, a person shall only be considered a “returned case” for 90 days after the initial onset of COVID-19 symptoms or, if the person never developed COVID-19 symptoms, for 90 days after the first positive test.  Under the proposed ETS, employers do not need to provide testing to returned cases who are close contacts or to asymptomatic returned cases in the exposed group for an outbreak.

Main Takeaway:

Consistent with recent CDC guidance, the proposed ETS relaxes multiple protocols and requirements under the current ETS.  Sheppard Mullin will continue to monitor updates from Cal/OSHA and will write about the revised Cal/OSHA ETS if readopted.  Once the Board readopts the proposed ETS, employers will then have a couple weeks to update their CPP and corresponding protocols and policies.  Employers with any questions or concerns about the proposed ETS should consult with experienced employment counsel to ensure they are compliant once the proposed ETS becomes effective.

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.