CalOSHA’s [Revised] ETS are Here to Stay! …at Least Until the End of 2022

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

For the third time, CalOSHA has revised its Emergency Temporary Standards (“ETS”) governing workplace safety due to the COVID-19 pandemic.  The revised ETS are due to take effect on May 6, 2022 once they have been reviewed by the Office of Administrative Law and filed with the California Secretary of State.

Once in effect, the ETS will be in place through December 31, 2022 and thus California employers must ensure that they continue to comply with various health and safety protocols to reduce and respond to COVID-19 in the workplace.

The revisions made in this third version of the ETS are not extensive or onerous and, in fact, some previous safety requirements have been eliminated. Below is a summary of some of the revisions:

  • CalOSHA deleted the definition of “fully vaccinated” employees, and also eliminated the requirement that an employer ensures face coverings are worn by employees who are not fully vaccinated.
    • Why does this matter? Because of this new language, employers are no longer required to document whether or not employees are fully vaccinated in order to know which employees are required to wear face coverings at indoor workplaces.  Instead, employers are required to provide face coverings and ensure they are worn by employees (regardless of vaccination status) when (and if) required by orders from the California Department of Public Health (“CDPH”).
  • The updated ETS requires that employers make testing available at no cost to all employees (regardless of vaccination status) if they have COVID-19 symptoms. The testing is to be available during employees’ paid time.
  • Similarly, any employee (regardless of vaccination status) may request a respirator for voluntary use consistent with the ETS, without fear of retaliation and without cost to the employee.
  • CalOSHA deleted the language in the ETS requiring that employers exclude employees from the workplace who were in “close contact” with an individual who was positive for COVID-19. Instead, the ETS now requires that employers review current CDPH guidance for persons who had close contacts, including any guidance regarding quarantine or other measures to reduce transmission.
    • Note, however, that the updated ETS expressly states that in such case, employers shall develop, implement, and maintain effective policies to prevent transmission of COVID-19 by persons who had close contacts.
  • The revised ETS no longer requires employers to implement and follow cleaning and disinfecting procedures that involve regular identification and cleaning of frequently touched surfaces and objects, or the disinfection of areas and equipment used by an infected employee during a high-risk exposure period.
  • The revised ETS update the return to work criteria for employees who are positive for COVID-19 and were excluded from the workplace.
    • Regardless of vaccination status or previous infection, an employee who is positive for COVID-19 but does not develop symptoms, or the symptoms are resolving, shall not return to work until:
      • At least five days have passed since COVID-19 symptoms began or, if no symptoms, from the date of the first positive COVID-19 test.
      • At least 24 hours have passed since a fever of 100.4 degrees or higher has resolved without the use of fever reducing medications; and
      • A negative COVID-19 test from a specimen collected on the fifth day or later is obtained; or, unable to test or the employer chooses not to require a test, 10 days have passed from the date the COVID-19 symptoms began or, if no symptoms, from the date of the first positive COVID-19 test.
    • Regardless of vaccination status or previous infection, an employee whose COVID-19 symptoms are not resolving, may not return to work until:
      • At least 24 hours have passed since a fever of 100.4 degrees or higher has resolved without the use of fever reducing medication; and
      • Symptoms are resolving or 10 days have passed from when the symptoms began.
    • Also, regardless of vaccination status, previous infection or lack of COVID-19 symptoms, an employee who was positive for COVID-19 shall wear a face covering in the workplace until 10 days have passed since the date that COVID-19 symptoms began or if the person did not have symptoms, from the date of their first positive COVID-19 test.
  • The updated ETS allows for self-administered and self-read COVID-19 testing, only if another means of independent verification of the results can be (e.g. through a time-stamped photograph of the results).

A copy of the redline version of the amended ETS (8 CCR, section 3205, et. seq.) can be found, here.

Employers should monitor the CalOSHA COVID-19 website for the final version of the ETS and look for any new COVID-19 FAQs produced by CalOSHA. The CalOSHA COVID-19 website can be found, here.