California’s ETS Updates Since Biden’s Vaccine Mandate Announcement

by Shauna N. Correia
The Labor & Employment Law Blog

Cal/OSHA has quietly made several updates to the FAQs for its COVID-19 Prevention Emergency Temporary Standards (ETS).  The additions shed additional light on, and in some regards revise previous guidance, relating to Isolation and Quarantine, Vaccines, and Exclusion Pay.

Isolation and Quarantine:

California’s Department of Public Health (CDPH) recently updated its guidance on isolation and quarantine and its guidance for K-12 schools.  The updated guidance prescribes a shorter quarantine period for asymptomatic, unvaccinated people who were in close contact with a COVID case than what the June 17 ETS provided.

Executive Order N-84-20 section 9 states that if the quarantine or isolation periods in the ETS exceed the exclusion periods recommended by the CDPH, they will be suspended.  This means that the enforceable period is the shorter period described in the CDPH guidance, not the longer period described in the June 17, 2021 version of the ETS.  Cal/OSHA has updated its FAQs to align with the CDPH guidance.

For an asymptomatic unvaccinated employee, including those in the K-12 school setting, who has been in close contact with a COVID-19 case, there are two options for that employee to return to work sooner than the full 14 days from the date of last exposure:

  1. If the employee gets tested for COVID-19 after day 5, and tests negative, they can discontinue self-quarantine after 7 days from the date of the last exposure; or
  2.  If the employee does not gets tested for COVID-19, they can discontinue self-quarantine after 10 days from the date of last exposure.

Option 1 was previously not available for asymptomatic, unvaccinated employees.

As a reminder, under CDPH’s recommendations, an exposed person does not have to quarantine if (1) they were fully vaccinated before the exposure and remain asymptomatic or (2) an exposed person tested positive for COVID-19 before their new, recent exposure and it has been less than 3 months since they started having symptoms from that previous infection (or since their first positive COVID-19 test if asymptomatic).

Vaccine Mandate:

As we recently advised, President Biden announced that he has ordered OSHA to implement rules requiring large employers to either mandate COVID-19 vaccinations or subject employees to weekly COVID-19 testing.  Cal/OSHA added FAQ 9 to explain that, as a “state plan state,” California is required to adopt occupational safety and health standards “at least as effective” as federal OSHA’s.  This means that if federal OSHA adopts a standard that requires employers with 100 or more employees to require either vaccines or weekly testing for employees, California (and other states with state OSHA plans) will have 30 days after the federal standard is promulgated to adopt a comparable standard.

Exclusion Pay/COVID-19 Supplemental Paid Sick Leave Expiration:

On October 7, 2021, Cal/OSHA updated FAQ No. 2, to confirm that even though the COVID-19 Supplemental Paid Sick Leave law lapsed on September 30, 2021, workers who took time unpaid off in 2021 but did not receive the SPSL that they were entitled to, can still request pay after September 30.

And, Cal/OSHA confirmed, even though SPSL expired, the ETS still requires employers to provide paid exclusion leave to employees who are excluded from work due to a workplace COVID-19 exposure and  1) the employee was not assigned to telework during that time; and 2) the employee did not receive Disability Payments or Workers’ Compensation Temporary Disability Payments during the exclusion period.

The Cal/OSHA FAQs also link to the updated Labor Commissioner website, which published a statement that confirmed that workers taking 2021 SPSL as of September 30, 2021 may continue to take the leave they are currently on even if the entitlement extends past September 30, 2021.  This means that employers who “cut off” an employee’s SPSL on September 30, 2021 while they were out on an SPSL covered leave should confirm whether the employee had any of the 80 SPSL hours remaining after September 30.  If so, employers may need to pay out that additional leave balance if it was still available and an employee started their SPSL on or before September 30, 2021 and completed SPSL after that date.

We will continue monitoring the federal and state agency guidelines.  Meanwhile, employers with questions about how the COVID-19 regulations apply to their workplace should contact their regular Weintraub Tobin employment attorney.