On December 16, 2021, the Occupational Safety and Health Standards Board (OSHSB) adopted a number of amendments to the Emergency Temporary Standards (Cal/OSHA COVID-19 Regulations),[1] which will likely take effect on December 26, 2021.[2]
The purpose of this special bulletin is to identify and discuss the more significant amendments to the Cal/OSHA COVID-19 Regulations, so that employers may modify their workplace health and safety policies, procedures, and practices, including their COVID-19 Prevention Programs (CPP),[3] in order comply with these regulations.
Definitions
The OSHSB adopted several amendments to regulatory definitions, including to the definitions for “COVID-19 test,”[4] “face covering,”[5] and “worksite.”[6]
“COVID-19 test”
The updated regulations amend the definition of a “COVID-19 test”[7] to exclude tests that are both self-administered and self-read, unless observed by the employer or a telehealth proctor.
This change will preclude employees from conducting self-administered tests at home in order to satisfy expedited return to work requirements for employees who have had a close contact exposure.
“Face covering”
The OSHSB revised the definition of “face covering”[8] to require that fabric face coverings not let light pass through when held up to a light source.
Amendments to Regulatory Requirements
The OSHSB also amended several substantive sections of the Cal/OSHA COVID-19 Regulations.
Free Testing for All Employees Following a Close Contact Exposure
The updated regulations modify requirements concerning the provision of no-cost testing to employees following a close contact exposure at work.[9]
Previously, the regulation did not require that employers offer testing to fully vaccinated employees who did not present any symptoms associated with COVID-19 following an exposure. The OSHSB removed that carve out, requiring that employers offer testing to all employees who had a close contact exposure, regardless of their vaccination status, unless the employee recently recovered from a COVID-19 case within the preceding 90 days.
Employers should be prepared to respond to COVID-19 cases by offering testing to fully vaccinated employees as well as those who are not vaccinated.[10]
Additional Requirements for Fully Vaccinated Employees Who Have Close Contact
The OSHSB also amended the regulations by imposing certain requirements on employees who, because they are either fully vaccinated or recently recovered from a COVID-19 case, are not required to be excluded from the workplace.
Previously, employers were allowed to permit such employees to remain at work so long as they remained asymptomatic. The OSHSB amended this section to add a requirement that, in order for these employees to remain at the workplace, they must wear a face covering and maintain six feet of physical distance from others at the workplace for 14 days following the close contact exposure.[11]
Return to Work Criteria for Unvaccinated Employees Who Have Close Contact Exposure
Finally, the OSHSB made the changes set forth below to the return-to-work criteria for unvaccinated employees following a close contact exposure.
Unvaccinated Employees Without Symptoms
First, the amended regulations reinstitute the 14-day quarantine, up from 10 days, unless the employee satisfies the requirements for an expedited return-to-work. As a general matter, the amended regulations require that unvaccinated employees who have had a close contact exposure, but do not present symptoms associated with COVID-19, remain at their home or place of residence for 14 days.[12] However, the regulations provide two exceptions to the general rule: (1) where 10 days have passed since the close contact and the employee wears a face covering and maintains six feet of distance while at the workplace for 14 days following the close contact[13]; or (2) Seven days have passed since the close contact and the employee tested negative for COVID-19 with a specimen taken at least five days after the close contact and the employee wears a face covering and maintains six feet of distance while at the workplace for 14 days following the close contact.[14] As provided above, a self-administered and self-read COVID-19 test would not satisfy the testing requirement for return-to-work.
Unvaccinated Employees With Symptoms
Second, the amended regulations remove testing as a means by which to satisfy the return to work requirements after a close contact exposure where the unvaccinated employee develops symptoms associated with COVID-19.[15] Previously, an unvaccinated employee who had a close contact exposure and developed symptoms could return to work 10 days after the exposure if they tested negative for COVID-19 using a polymerase chain reaction (PCR) test. Now, unvaccinated employees who are symptomatic must satisfy the three-part return-to-work test for symptomatic COVID-19 cases, which requires satisfaction of the following criteria: (1) At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medications; (2) COVID-19 symptoms have improved; and (3) At least 10 days have passed since COVID-19 symptoms first appeared.
Unvaccinated Employees In Health Care, Emergency Response, and Social Services Sectors
Third, the amended regulations remove the expedited return-to-work procedure for unvaccinated employees in the health care and emergency response sectors who have a close contact exposure when there is a critical staffing shortage.[16] Previously, the employers of such employees were authorized to effectuate an expedited return-to-work during staffing shortages.
Collectively, these regulatory changes will negatively affect staffing as they will require that employers keep employees who have had close contact exposures out from work for longer than previously required.
Liebert Cassidy Whitmore is currently updating its model COVID-19 Prevention Program (CPP) in order to reflect the recent amendments to the Cal/OSHA COVID-19 Regulations. In the model CPP, in addition to identifying the regulatory changes, the firm provides commentary in order to explain the effects of the amendments. The model CPP will be available for sale next week.
Liebert Cassidy Whitmore attorneys are closely monitoring continuing developments at the OSHSB and will be providing additional updates as necessary.
[1] 8 C.C.R. §§ 3205-3205.4.
[2] Gov. Code § 11349.6(a).
[3] Pursuant to Title 8 Section 3205 of the California Code of Regulations, every employer must adopt and implement a COVID-19 Prevention Program (CPP). (8 C.C.R. § 3205.) Liebert Cassidy Whitmore updated its model CPP and the commentary provided therein to assist employers in complying with the updated Cal/OSHA COVID-19 Regulations. Employers may purchase the updated model CPP and executive summary from Liebert Cassidy Whitmore next week.
[4] 8 C.C.R. § 3205(b)(6).
[5] 8 C.C.R. § 3205(b)(8).
[6] 8 C.C.R. § 3205(b)(12).
[7] 8 C.C.R. § 3205(b)(6).
[8] 8 C.C.R. § 3205(b)(8).
[9] 8 C.C.R. § 3205(c)(3)(B)(5).
[10] For COVID-19 testing resources, consult the following link.
[11] 8 C.C.R. § 3205(c)(9)(B).
[12] 8 C.C.R. § 3205(c)(10)(D)(1).
[13] 8 C.C.R. § 3205(c)(10)(D)(1)(a).
[14] 8 C.C.R. § 3205(c)(10)(D)(1)(b).
[15] 8 C.C.R. § 3205(c)(10)(D)(2).
[16] 8 C.C.R. § 3205(c)(10)(D)(3).