Cal/OSHA Adopts New Emergency Temporary Standards for 2022

On December 16th 2021, the Cal/OSHA Standards Board adopted yet another version of COVID-19 Emergency Temporary Standards (ETS). The revised standards become effective January 14th, 2022. While some of the existing provisions will remain in effect, there are new obligations for employers as well.

Cal/OSHA ETS Provisions That Remain in Effect

• The requirement to establish, implement, and maintain an effective Written COVID-19 Prevention Program (WCPP) remains in effect and is currently one of the most cited Cal/OSHA violations.
• Employers must continue to provide training and instruction to employees on how COVID-19 is spread, information on infection prevention techniques, and information regarding COVID-19-related benefits that affected employees may be entitled to under applicable federal, state, or local laws.
• Notice requirements remain in place, but there is some new guidance that will require employers to update the notices and other information they are providing to employees.
• Exclusion pay is still required for eligible COVID-19 workplace exposures.
• Outbreaks – Both the definitions of outbreaks and the reporting requirements for outbreaks remain in effect.

Cal/OSHA Provisions That Have Been Modified or Added

Important Definition Changes:

• “COVID-19 Test” – Expanded definition to include home tests, over-the-counter tests, and point of care tests. However, the new ETS states that a test cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth provider.
• “Face Coverings” – Clarified definition to require fabrics that do not allow light to pass through when held up to a light source (except face coverings that have clear plastic panels used for accessible communication), and must fit snugly over the nose, mouth and chin with no large gaps on the outside of the face.
• “Fully Vaccinated” – Definition expanded to include vaccines administered as part of a clinical trial. The new ETS also adds the term “primary vaccination” to describe a COVID- 19 vaccination with, if applicable, at least the minimum recommended interval between doses in accordance with the FDA, WHO, or as part of a clinical trial.
• “Worksite” – Definition clarified to not include locations where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely.

Changes to Exclusion Rules: 

The previous amendments to the ETS eliminated exclusion requirements for fully vaccinated and asymptomatic employees. However, with the increase of “breakthrough” cases of even fully vaccinated and boosted employees, some of that exclusion flexibility is removed once again.

Any employees who test positive – regardless of vaccination status, natural immunity, or whether or not they have symptoms – must follow the below guidelines:

• Isolate and be excluded from the workplace for at least five days.
• After five days if symptoms are not present or are resolving and the employee has a negative COVID-19 test result (must be taken no earlier than day five) isolation can end.
• If the employee is unable or unwilling to take another COVID-19 test and symptoms are not present or are resolving, isolation can end after Day 10.
• If an employee has a fever, isolation must continue, and the employee may not return to work until the fever resolves.
• If an employee’s symptoms other than fever are not resolving, they may not return to work until their symptoms are resolving or until after day 10 from the positive test.
• Wear a “well-fitting mask” around others for a total of 10 days after their positive test.

Employees who are exposed to someone with COVID-19 and are unvaccinated or vaccinated and “booster-eligible” but have not received their booster dose yet – regardless of whether or not they have “natural immunity” from a previous infection – must follow the below guidelines:

• Isolate and be excluded from the workplace for at least five days after their last close contact with a person who has COVID-19.
• Test on day five.
• After day five if symptoms are not present and the employee has a negative COVID-19 test result they can return to the workplace.
• If an employee is unable or chooses not to test and does not have symptoms, they may return to the workplace after day 10.
• Employees must wear face coverings around others for a total of 10 days after exposure, especially in indoor settings.
• If an exposed employee tests positive for COVID-19, they must follow the isolation requirements above.
• If an exposed employee develops symptoms, they must be excluded pending the results of a test.

Employees who are exposed to someone with COVID-19 and have received their booster dose or are fully vaccinated but not yet “booster-eligible” are not required to quarantine if they meet the below criteria:

• Test on day five with a negative result.
• Wear face coverings around others for 10 days after exposure, especially in indoor settings.

If anyone in this category of employees tests positive, they must follow the isolation recommendations above for positive employee cases. If anyone in this category of employees develops symptoms, they must be excluded pending the results of a test.

Changes to Testing Obligations: 

The obligations for employers to provide information on how employees can obtain testing and to make testing available during paid time remain in place, but there was a change to the categories of employees for whom testing should be made available to. Previously, employers were only required to offer testing to unvaccinated employees and fully vaccinated employees with symptoms. Under the revised ETS, post-exposure testing must now be “made available” even to asymptomatic fully vaccinated employees. According to Cal/OSHA, employers only have to make the testing available, but are not in violation of the requirements if an employee declines testing.

Changes to Notification Requirements:

Employers are still required to provide notice of a potential COVID-19 exposure to all employees. Under the new ETS, there is a clarification that this notice must be provided to “all employees who were on the premises at the same worksite as the COVID-19 case during the high-risk exposure period.” There is also a clarification that this notice is to be provided “in the manner the employer normally uses to communicate employment-related information.”

Employers should also check their notice templates to ensure they are compliant with the definition changes mentioned above.

Additional Changes to the ETS:

• Employee Screening
  • If the employer conducts screening indoors at the workplace, face coverings must be worn by both screeners and employees, regardless of vaccination status.
• Employer-Provided Housing
  • If MERV 13 or higher filters are not used, HEPA filtration units shall be used, to the extent feasible, in all sleeping areas. Previously only applied in sleeping areas where two or more residents were not fully vaccinated.
  • Employers must now test all residents of employer-provided housing in which there were three or more COVID-19 cases in 14 days.
  • Employers must now quarantine even fully vaccinated asymptomatic residents following a close contact.
• Employer-Provided Transportation
  • Employers must provide face coverings (which must be worn) even to fully vaccinated employees.

Next Steps for Employers

The revised ETS takes effect on January 14th, 2022 and remains in effect until April 14th, 2022, though it is possible for them to be extended through the end of 2022 by authorization of Executive Order. Below are the next steps for employers:

• Review the updated Cal/OSHA ETS FAQs.
• Review the Updated CDPH Guidance.
• Begin collecting booster-dose information for eligible employees.
• Review your Written Plan COVID-19 Prevention Program, exposure notices, and other policies that need to be modified.