Employment Law Bulletin | December 23, 2021

Revised Cal-OSHA Emergency Temporary Standards Take Effect January 14, 2022

On December 16, the California Occupational Safety and Health Standards Board readopted the Cal-OSHA COVID-19 Prevention Emergency Temporary Standards for the second time (“Revised ETS”).  While the prior ETS, adopted in June 2021, loosened many restrictions for Fully Vaccinated employees, the Revised ETS deletes some of the distinctions based on vaccination status and imposes stricter regulations on mask-wearing, physical distancing and return to work rules for employees who have been in “Close Contact” with a COVID-19 Case in the workplace.

The Revised ETS takes effect on January 14, 2022, and will expire April 14, 2022; however Governor Newsom issued an executive order that allows Cal-OSHA to readopt another ETS up through December 31, 2022.

The June 17, 2021 ETS with the December 2021 revisions marked can be found here.  Cal-OSHA’s Fact Sheet on the Revised ETS can be found here.  All capitalized terms in this article are defined in the Revised ETS.

Covered Workplaces

The Revised ETS applies to all workplaces except: (1) work locations with one employee who does not have contact with other persons; (2) employees working from home; (3) employees teleworking from a location of the employee’s choice, which is not under the control of the employer; and (4) employees subject to the Aerosol Transmissible Diseases Cal-OSHA standard.

Revised Employee Symptom Screening Requirements

Employers who conduct COVID-19 symptom screening indoors at the workplace, must ensure that Face Coverings are used during the screening by both screeners and employees.  (The previous ETS did not require Face Coverings for Fully Vaccinated individuals.)

Revised Testing Requirements for “Close Contacts” in the Workplace

COVID-19 testing must now be offered at no cost to all employees who had a Close Contact with a COVID-19 Case in the workplace.  (The previous ETS did not require employer-provided testing for employees who were vaccinated if they were not symptomatic.)

Revised Face Covering Requirements

In addition to the previous Face Covering requirements, Face Coverings must now also:

• be of a fabric that does not let light pass through when held up to a light source
• be a solid piece of material without slits, visible holes, or punctures
• completely cover the nose and mouth
• fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face
• be secured to the head with ties, ear loops or elastic bands that go behind the head (if gaiters are worn, they must have two layers of fabric or be folded to make two layers).

Clear face coverings or cloth face coverings with a clear plastic panel that, despite the non-cloth material allowing light to pass through, otherwise meet the mask requirements, may be used to facilitate communication with people who are deaf, hard-of-hearing or need to see a speaker’s mouth or facial expressions to understand speech or sign language.

The prior ETS exempted employees from wearing Face Coverings due to a medical condition, mental health condition, or disability if they wore an effective non-restrictive alternative, such as a face shield with a drape on the bottom, if their condition or disability permitted. In recognition of the fact that some medial conditions/disabilities do not permit a non-restrictive alternative, the Revised ETS requires such unmasked employees to be at least six feet apart from all other persons, and either (1) Fully Vaccinated, or (2) tested at least weekly for COVID-19 during paid time at no cost to the employee.

Expanded Employer Notification Requirements

Within one business day of receiving notice of a COVID-19 Case, employers must:

• notify all employees and independent contractors who were on the premises at the same worksite as the COVID-19 Case during the High Risk Exposure Period; and
• provide all employees who had Close Contact with a COVID-19 Case with the notice required by Labor Code section 6409.6(a)(2) and (c).  This notice must also be provided to the employee’s representative (if any).

The notices must be written, easy to understand, identify the employer’s cleaning and disinfection plan, and sent in the manner the employer usually uses to communicate employment-related information.

Expanded Employer Benefit and Pay Requirements for Employees Who Had a “Close Contact” in the Workplace

The prior ETS did not require employers to provide COVID-19-related benefits and pay to employees who had a Close Contact in the workplace if they were Fully Vaccinated before the contact and did not have COVID-19 Symptoms.  The Revised ETS requires employers to provide such benefits and exclusion pay to all employees who had a Close Contact in the workplace including:

• COVID-19 Testing available at no cost, during paid time
• COVID-19-related benefits, including legally mandated sick and vaccination leave, if applicable, workers’ compensation law, local governmental requirements, the employer’s own leave policies, and any leave guaranteed by contract; and
• Exclusion Pay and job protection – unless the employer can prove that the Close Contact was not-work related, the employer must continue and maintain the employee’s earnings, wages, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job. Employers may use employer-provided employee sick leave for this purpose to the extent permitted by law.

Revised Return to Work Rules for Employees Who Had a “Close Contact” with a “COVID-19 Case”

Employees who had a Close Contact, but never developed COVID-19 Symptoms may return to work right away if:

• they were Fully Vaccinated before the Close Contact and they wear a face covering and maintain six feet of distance from others at the workplace for 14 days following the last date of Close Contact; or
• they had COVID-19 in the past and have remained symptom free, provided it is within the first 90 days after the initial onset of COVID-19 Symptoms and they maintain six feet of distance from others at the workplace for 14 days following the last date of Close Contact.

Unvaccinated Employees who had a Close Contact, but never developed COVID-19 Symptoms may return to work after:

• 10 days have passed since the last known Close Contact if the person wears a Face Covering and maintains six feet of distance from others while at the workplace for 14 days following the last date of Close Contact.
• 7 days have passed since the last known Close Contact; the person tested negative for COVID-19 using a COVID-19 test with the specimen taken at least 5 days after the last known Close Contact; and the person wears a Face Covering and maintains six feet of distance from others while at the workplace for 14 days following the last date of Close Contact.

Employees who had a Close Contact and developed COVID-19 Symptoms cannot 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 medications; and
• COVID-19 Symptoms have improved; and
• At least 10 days have passed since COVID-19 Symptoms first appeared.

Conclusion

While the 29-page Revised ETS is detailed and complex, it is designed to protect your employees and those with whom you do business, making compliance with its requirements a vital component of protecting your business and avoiding workplace closures due to COVID-19 exposure.  While the likelihood of Cal-OSHA performing a random audit of your business may be small, most Cal-OSHA enforcement actions arise from employee complaints.  Failure to implement and enforce the Revised ETS in your workplace exposes your business not only to Cal-OSHA fines, but also to workers compensation liability for workplace COVID-19 cases and employee claims.
If you would like assistance in understanding the Revised ETS, investigating workplace exposures or developing the required notices to employees, do not hesitate to contact an SMT Employment attorney.  We are here to help you.

If SMT previously created an ETS-compliant Protocol, Workplace Investigation and Notice packet for your business, please reach out to us so we can prepare an updated packet that complies with the Revised ETS requirements.  If you haven’t yet received a packet and would like to have one prepared so you will be ready to quickly investigate and notify your employees of a COVID-19 exposure in the workplace, please contact an SMT Employment attorney.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown