On December 16, 2021, the California Occupational Safety and Health Standards Board (Cal/OSHA) implemented amendments to the current COVID-19 Prevention Emergency Temporary Standards (ETS). The legislation will apply to most non-remote employees, aside from those covered by the Aerosol Transmissible Diseases standard. The updated regulation is set to go into effect on January 14, 2022 and has an expected expiration date of April 14, 2022.
Cal/OSHA determined the need for updating the ETS to include important revisions to make the workplace rules consistent with the latest requirements and recommendations from the California Department of Public Health (CDPH). Those important revisions include:
Testing & Exclusion
Employers are required to make COVID-19 testing available at no cost and during paid time to all employees who were in “close contact” with a COVID-19 positive colleague, this includes employees who are fully vaccinated and asymptomatic. Close contact is defined as an employee has had a close contact if they were within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the “high risk exposure period.” Additionally, during outbreaks (3+ employee cases) and major outbreaks (20+ employee cases), employers must now make weekly testing or twice-weekly testing available to asymptomatic fully vaccinated employees in the exposed group. The definition of COVID-19 test was also clarified as part of the amendment to allow for self-administered and self-read tests, but only if the employer or an authorized telehealth proctor observes the test.
Employees who have recently recovered from COVID-19 and those who are fully vaccinated are not required to be excluded from the workplace after “close contact” but must wear a face covering and maintain six feet of physical distancing for 14 calendar days following the last date of contact.
Cal/OSHA has provided clarification regarding the definition of what is considered a face covering in that the covering must totally cover the nose and mouth and be affixed to the head with ties, elastic bands, or ear loops that go behind the head. Cloth masks are also covered under the definition instead of just surgical/medical masks or respirators, if the mask does not allow “light to pass through when held up to a light source.” Furthermore, employees who are exempt from wearing a face covering due to a medical or mental health condition, or disability and cannot wear a non-restrictive alternative must physically distance at least six feet from others and either be fully vaccinated or tested at least weekly for COVID-19, as outlined above.
Return to Work
As part of the revision to the Cal/OSHA ETS, the period of time before an employee can return to work after “close contact” or COVID-19 illness has been modified to mimic the guidelines set by the California Department of Public Health. In the event that an unvaccinated employee is exposed to a “close contact” situation, they may return to the workplace only if the following is applicable:
- If the unvaccinated employee does not develop any COVID-19 symptoms, they may return to work when 10 days have passed since the last known close contact.
- If the unvaccinated employee develops symptoms, all of the following will need to occur before the employee can return:
- The employee has tested negative using a PCR test after the onset of symptoms;
- The employee has waited 10 days following the last known close contact; and
- The employee has been symptom-free for at least 24 hours without fever reducing medications.
For an employee who is fully vaccinated that is exposed to a COVID-19 case, they need not be excluded from the workplace, unless they begin developing symptoms of the virus. In which case, the exclusion requirements listed above for an unvaccinated employee would apply and would need to be met before the employee returns.
Next Steps for Employers
Even with the current Cal/OSHA ETS in play, employers should review their policies in order to ensure their ready to comply with the changes that are set to go into effect as of January 14, 2022. Employers are also encouraged to continue to monitor guidance from local and state departments of health and federal regulations for further changes regarding COVID-19 workplace requirements.