Employer Alert: Second Readoption of Cal/OSHA COVID-19 Workplace ETS

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The results are in. The second readoption of the revised COVID-19 Workplace Emergency Temporary Standard (ETS), issued by the standards setting board of the California Division of Occupational Safety and Health (Cal/OSHA), has now been voted on and approved.  Cal/OSHA first established the ETS in November 2020, in response to COVID-19.  A revised ETS was adopted on June 17, 2021. Today’s readoption, which includes the most recent recommendations from the California Department of Public Health (CDPH), will take effect January 14, 2022, and will continue until April 14, 2022.
The latest ETS update has the following notable modifications:
  • Investigating and responding to COVID-19 cases in the workplace: Employers must continue to properly notify, within one business day, employees, employee representatives and any other workers at a worksite of possible COVID-19 exposures. This section was clarified to give employers clearer instructions on how to notify workers who were at the same worksite as the COVID-19 case during the high-risk exposure period. Basically, the only employees that need to be notified in this situation are those who were on the premises at the same worksite as the COVID-19 case. 
  • Screening requirements: Employers whose COVID-19 screening symptoms are conducted indoors must now ensure that the screener and employees wear face coverings regardless of vaccination status, whereas the earlier ETS did not require masks during screenings.
  • Face Coverings: The face covering definition was updated to include more detail: “surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers.” The regulation also specifies that the face covering should not have slits, visible holes, or punctures. Of note, the definition includes a new “light” test added to the face covering definition where face coverings must not “let light pass through when held up to a light source.” What this means is not yet apparent, but we will be looking for further explanation in forthcoming FAQs.
    • One note, no change was made to the general ETS face covering rules allowing fully vaccinated employees to go without face coverings indoors; however, as a reminder, California just reinstituted an indoor mandate through January 15, 2022, regardless of vaccination status and the CDPH made clear that this requirement applies to all workplaces.
  • Testing and Exclusion: The following revisions make the ETS consistent with current CDPH recommendations:
    • Employers must now make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before the “close contact” with a COVID-19 case occurred, even if they are asymptomatic.
    • During outbreaks and major outbreaks, employers must now make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available to asymptomatic fully vaccinated employees in the exposed group.
    • 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.
  • Return to Work Criteria: The period of time before an employee can return to work after close contact or COVID-19 infection was changed to be consistent with current CDPH guidelines.
Additional updates include changes to the definitions of “COVID-19 tests” and “fully vaccinated” and revisions to the guidelines dealing with employer provided housing and transportation and face covering-exempt employees. Important requirements remain unchanged in the COVID-19 Prevention Emergency Temporary Standards. Specifically, employers must continue to maintain an effective COVID-19 Prevention Program.
We will continue to keep you posted on the ETS as more information comes through, including potential updates to the FAQ guidance from Cal/OSHA before the January 14 effective date. Remember, if you need assistance making your way through the ever-changing workplace due to COVID-19, including setting up or updating your prevention program, McKague Rosasco LLP is here to help.
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