Employment Law Bulletin | May 12, 2022

CAL/OSHA Revises and Adopts Emergency Temporary Standards for a Third Time

On May 6, 2022, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) readopted the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards for the third time (“Revised ETS”).  The Revised ETS will be in effect until December 31, 2022, subject to change only if California Department of Public Health (“CDPH”) guidance changes.  The Revised ETS can be found here.  Cal/OSHA’s FAQs on the Revised ETS can be found here (general FAQs) and here (FAQs specific to the changes).  Terms capitalized in this article are defined in the Revised ETS.

The latest changes reflect the agency’s desire to attain flexibility and consistency with the CDPH.  In an apparent attempt to recognize that the recent COVID-19 variant attacks both vaccinated and unvaccinated individuals, the Revised ETS removes all distinctions based on vaccination status, making the ETS applicable to all employees.  Below is a summary of the major changes that affect employers.

Revised Testing Requirements

Regardless of the employee’s vaccination status, employers must offer testing at no cost and during paid work time to all symptomatic employees and employees with a workplace Close Contact.  However, employers are not required to offer testing to employees who have recently recovered (within 90 days) from COVID-19.

The Revised ETS also now permits the use of self-administered and self-read tests, so long as the employee provides independent verification of the results, such as a time-stamped photograph of the results.

Revised Face Covering Requirements

Face coverings are no longer mandatory indoors for unvaccinated employees.  However, all employees are required to wear masks under the following circumstances:

• If the CDPH issues an order requiring them.  Currently, face coverings are required in the workplaces listed below.  Review CDPH guidance here, as these are subject to change.
  • Emergency shelters
  • Cooling and heating centers
  • Healthcare settings
  • Correctional facilities and detention centers
  • Homeless shelters
  • Long term care settings and adult and senior care facilities
• When the employee has tested positive for COVID-19 and returns to work within ten days of experiencing symptoms or receiving a positive test result; or
• When the employee is part of an Exposed Group during a workplace Outbreak or Major Outbreak.

If an employee requests an N-95 respirator, employers must provide it to the employee free of charge regardless of vaccination status (previously only required for unvaccinated employees).

Revised Physical Distancing Requirements

All physical distancing requirements have been removed unless there is an Outbreak, a Major Outbreak, or an ongoing requirement to assess and prevent the transmission of disease.

Partitions and barriers are no longer necessary to reduce COVID-19 transmission.

Revised Exclusion Requirements

The exclusion of employees from the workplace is now required pursuant to CDPH guidelines. Click here for the current CDPH guidelines to ensure compliance.

Employer-Provided Transportation and Housing Requirements

Employee vaccination status is no longer a differentiating factor in determining what requirements apply for employer-provided housing and transportation; rather, the requirements apply to all employees.

Cleaning and Disinfection Requirements Removed

Cleaning and disinfecting requirements are no longer necessary under the Revised ETS.

Requirements from the Previous ETS That Have Not Changed

The following requirements remain the same under the Revised ETS:

• Establishing, implementing, and maintaining an effective written COVID-19 Prevention Program.
• Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
• Providing notification to public health departments of Outbreaks.
• Providing notification to employees of potential exposure and Close Contacts.
• Offering COVID-19 testing after potential exposures.
• Requirements for responding to COVID-19 cases and Outbreaks.
• Isolation and exclusion pay requirements.
• Basic prevention requirements for employer-provided housing and transportation.

Conclusion

Failure to implement and enforce the Revised ETS in your workplace exposes your business to Cal/OSHA fines, 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, please 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.

Kari Brown
Betsey Cunningham

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Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown