On April 21, 2022, the Occupational Safety and Health Standards Board (“OSHSB”) amended and re-adopted the Cal/OSHA COVID-19 Emergency Temporary Standards (“ETS”).[1] The amendments included in this third re-adoption of the ETS will remain in effect through December 31, 2022, unless extended, modified or rescinded in the interim.[2]
This special bulletin identifies and discusses the substantive amendments to the ETS in order to assist employers in modifying their workplace health and safety policies, procedures, and practices, including their COVID-19 Prevention Programs (“CPP”),[3] to comply with operative legal obligations.
Notice regarding Exclusion Periods and Return to Work Requirements
The first substantive change to the ETS is inclusion of a note to employers advising them of the interaction between the workplace health and safety regulations and public health guidance.
The note advises employers that, pursuant to Executive Order N-84-20, in circumstances where the ETS provides for a lengthier exclusion period than is required by the California Department of Public Health (“CDPH”), the regulatory requirements are suspended and the public health guidance applies.[4]
In an earlier special bulletin, we described this interaction and how Executive Order N-84-20 suspended certain ETS requirements and supplanted them with CDPH guidance. By way of example, for employees who had a close contact exposure but did not develop any symptoms associated with COVID-19, the Executive Order suspended the ETS requirement that such employees quarantine for at least seven days[5] and replaced it with the CDPH guidance,[6] which required no quarantine for such employees.[7]
Definitions
The re-adopted ETS amends a number of the terms used in the regulations, including revising the definition for “COVID-19 test,”[8] removing the definition for “fully vaccinated,” and adding a definition for “returned case.”[9]
“COVID-19 test”
The updated regulations revised the definition of a “COVID-19 test.”[10]
The new definition provides that a test that is self-administered and self-read now qualifies as a COVID-19 test, so long as that test is being used by an employee in order to satisfy the return to work criteria and the result from such test can be independently verified, such as by a time-stamped photograph. Previously, a COVID-19 test that was both self-administered and self-read did not qualify as a COVID-19 test for any regulatory purpose.
The ETS continues to recognize other types of testing, including tests administered by a third-party, which were provided for under the second re-adopted ETS.
“Fully vaccinated”
The updated ETS removes the definition for the term “fully vaccinated,” as well as all references to the term in the regulation.
As a result of this change, the amended regulations no longer distinguish between employees based on their vaccination status, including on such subjects as the use of face coverings, the provision of respirators, and the testing of symptomatic employees.
“Returned case”
The updated regulations add a new term, “returned case,”[11] which refers to a COVID-19 case who has returned to work pursuant to the applicable return to work criteria. The ETS considers an employee to be a “returned case” for 90 days after the initial onset of COVID-19 symptoms or, if the person never developed COVID-19 symptoms, for 90 days after the first positive test.
The amended ETS provides that employers are not required to make COVID-19 testing available to a “returned case” in the event that such an employee has a close contact exposure in the workplace.[12]
Amendments to Regulatory Requirements
The amended ETS also include several substantive changes, including those related to face coverings, cleaning and disinfecting, and the exclusion and return to work criteria.
Face Coverings
Consistent with updated CDPH guidance on the use of face coverings, the updated regulations eliminate the requirement that employees who are not fully vaccinated wear face coverings indoors and in vehicles.[13] The use of face coverings now tracks CDPH guidance on the subject.
Other Engineering Controls, Administrative Controls, and Personal Protective Equipment (“PPE”)
The amended ETS made the following changes to the section of the regulations concerning administrative controls and PPE:
Exclusion of COVID-19 Cases and Close Contacts
In terms of the exclusion of COVID-19 cases and employees who have had close contact exposure to someone with COVID-19, the ETS maintains the requirement that COVID-19 cases be excluded from the workplace,[17] but advises employers to review current CDPH guidance for employees who have had a close contact exposure.[18]
Pursuant to the April 6 CDPH guidance, employees who have had a close contact exposure, but are asymptomatic do not need to quarantine, but should be tested three to five days after the close contact exposure and wear a face covering when around others for 10 days.
Return to Work Criteria for COVID-19 Cases
The OSHSB also updated the return to work criteria for COVID-19 cases, establishing two different return to work criteria based on whether the employee is symptomatic and whether their symptoms are resolving (i.e., improving).
Employees with No Symptoms or with Symptoms that are Resolving
For an employee who never developed symptoms or whose symptoms are resolving, the amended regulations require that the employee satisfy the following criteria in order to return to work:
Employees with Symptoms That Are Not Resolving
For an employee whose symptoms are not resolving, the amended ETS requires that the employee satisfy the following criteria in order to return to work:
The amended regulations require that all employees who had COVID-19 wear a face covering in the workplace until at least 10 days have passed since the first presentation of COVID-19 symptoms or, if the employee did not develop symptoms, from the date of the employee’s first positive COVID-19 test.[21] Previously, the ETS required that such employees be excluded from the workplace for at least 10 days.[22]
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 will provide addition commentary on the changes.
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] Executive Order N-23-21 authorizes a third re-adoption of the Emergency Temporary Standards (“ETS”). (Executive Order N-23-21, December 16, 2021, available at the following web address: https://www.gov.ca.gov/wp-content/uploads/2021/12/12.16.21-ETS-Readoption-and-Shareholder-Meeting-EO.pdf).
[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 CCR 3205.) Liebert Cassidy Whitmore updated its model CPP and the commentary provided therein to assist employers in complying with the updated Cal/OSHA ETS. Employers may purchase the updated model CPP and executive summary from Liebert Cassidy Whitmore.
[4] See Executive Order N-84-20, Section 7, suspending the exclusion periods under 8 CCR 3205(c)(10) and (11) of the then operative initial ETS, and replacing such requirements with the applicable quarantine and isolation periods recommended by the California Department of Public Health (“CDPH”) as provided in the December 14, 2020 guidance.
[5] See 8 CCR 3205(c)(10)(D). (Second re-adopted ETS).
[6] CDPH Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public, April 6, 2022, available at the following web address: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx.
[7] In 2022, the Department of Industrial Relations (“DIR”) confirmed that Executive Order N-84-20 continued to apply where (See DIR, COVID-19 Emergency Temporary Standards Frequently Asked Questions, CDPH Isolation and Quarantine, Question 1, March 2, 2022, available at the following web address: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#iso.
[8] 8 C.C.R. § 3205(b)(6).
[9] 8 C.C.R. § 3205(b)(11).
[10] 8 C.C.R. § 3205(b)(6).
[11] 8 C.C.R. § 3205(b)(11).
[12] 8 C.C.R. § 3205(c)(3)(B)(5).
[13] 8 C.C.R. § 3205(c)(6).
[14] 8 C.C.R. § 3205(c)(7).
[15] 8 C.C.R. § 3205(c)(7)(C)(2).
[16] 8 C.C.R. § 3205(c)(7)(D).
[17] 8 C.C.R. § 3205(c)(9)(A).
[18] 8 C.C.R. § 3205(c)(9)(B).
[19] 8 C.C.R. § 3205(c)(10)(A).
[20] 8 C.C.R. § 3205(c)(10)(B).
[21] 8 C.C.R. § 3205(c)(10)(C).
[22] See 8 CCR 3205(c)(10)(A) and (B). (Second re-adopted ETS).