Cal/OSHA Issues New ETS of Its Own
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Cal/OSHA Issues New ETS of Its Own: Here Are the Details for California Employers

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Overview

On December 16, 2021, the California Division of Occupational Safety and Health’s (Cal/OSHA) Standards Board voted to approve the second readoption of the California COVID-19 Prevention Emergency Temporary Standards (Second Readopted ETS), which contains a few material changes, including to COVID-19 testing and exclusion requirements and return to work criteria, and additional details concerning face coverings, accommodations and COVID-19 vaccination. The majority of the Cal/OSHA ETS employer obligations, however, are extended as-is by the Second Readopted ETS. The Second Readopted ETS will take effect on January 14, 2022.

In Depth

It is important to note that this new Second Readopted ETS is not related to the federal OSHA ETS vaccination or testing requirement. The Cal/OSHA ETS was first adopted by Cal/OSHA in November 2020 while this Second Readopted ETS is an update to that existing standard that does not address the federal OSHA ETS at this time.

When federal OSHA implements an ETS, state plans like Cal/OSHA are required to either adopt the federal OSHA ETS standard or implement an additional ETS intended to be at least as effective—if not more protective—than the federal OSHA ETS. With the recent development in the US Court of Appeals for the Sixth Circuit, which dissolved the Court of Appeals for the Fifth Circuit’s stay on enforcement of the federal OSHA ETS, it is anticipated that Cal/OSHA—along with the 21 other states with state OSHA plans—will soon adopt an additional ETS intended to comply with this requirement. That is, unless the Supreme Court of the United States reinstates a stay after the oral argument set on the federal OSHA ETS for January 7, 2022.

We highlight the forthcoming revisions to the Cal/OSHA Second Readopted ETS as compared with the current Cal/OSHA ETS in the following chart.

Currently, under the Cal/OSHA ETS… Effective January 14, 2022, under the Second Readopted ETS…
COVID-19 Testing After Workplace Exposure Employers are required to make COVID-19 testing available at no cost to employees who were exposed to COVID-19 in the workplace. However, there is an exception for employees who are fully vaccinated (definition below) before the close contact and asymptomatic. Employers are required to make COVID-19 testing available at no cost to employees who were exposed to COVID-19 in the workplace, irrespective of vaccination status.
Testing Options Limited guidance was provided regarding COVID-19 testing, stating only that a COVID-19 test means a viral test for SARS-CoV-2 that is approved by the US Food and Drug Administration (FDA) or has an Emergency Use Authorization (EUA) from the FDA to diagnose current infection with the virus. Additional detail is provided, in line with the federal OSHA ETS testing specifics, which defines a COVID-19 test as a cleared, approved or authorized test, including an EUA by the FDA, to detect current infection that is administered in accordance with the instructions and is “not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.”
Face Covering Requirements A surgical mask, medical procedure mask, voluntarily worn respirator or a tightly woven fabric or non-woven material of at least two layers with no visible holes or openings and that covers the nose and mouth. This does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar or single layer of fabric. In addition to the current Cal/OSHA ETS description, a face covering also must not let light pass through when held up to a light source, completely cover the nose and mouth, be secured to the head with ties, ear loops or elastic bands that go behind the head, have no slits or punctures and fit snugly over the mouth, nose and chin with no large gaps on the outside of the face. If gaiters are worn, they shall have two layers of fabric or be folded to make two layers. The definition now explicitly includes clear face coverings or cloth face coverings with clear plastic panels that, despite the non-cloth material allowing light to pass through, otherwise meets the definition and which may be used to facilitate communication with people who are deaf or hard-of-hearing or others who need to see a speaker’s mouth or facial expression to understand speech or sign language respectively.
Mask Accommodations For all employees not fully vaccinated, they generally must wear masks except for limited exceptions, which includes employees who cannot wear a face covering due to a medical condition, mental health condition or disability. In such case, the employee must wear an effective non-restrictive alternative, such as a face shield with a drape on the bottom, if the condition or disability permits it. In addition to the current Cal/OSHA ETS standard, extra detail has been added that if the employee’s medical or mental health condition or disability does not permit the employee to wear a non-restrictive alternative, the employee must be at least six feet apart from all other persons and either fully vaccinated or tested at least weekly for COVID-19 during paid time and at no cost to the employee.
Rules for Excluding Employees from the Workplace After “Close Contact” with a COVID-19 Positive Individual
  • Employees who were fully vaccinated before the close contact and who do not develop COVID-19 symptoms need not be excluded.
  • Employees who previously had COVID-19 within the last 90 days, returned to work under the return to work guidelines set forth in the Cal/OSHA ETS and are asymptomatic do not need to be excluded.
  • Employees not fully vaccinated and who have not had COVID-19 in the past 90 days and are asymptomatic must quarantine but may return to work after 10 days have passed since the last known close contact.
  • Employees who had a close contact and develop COVID-19 symptoms are excluded from the workplace and returned upon the timeline applicable to symptomatic COVID-19 cases.
  • Employees who were fully vaccinated before the close contact and who do not develop COVID-19 symptoms need not be excluded if 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.
  • Employees who previously had COVID-19 within the last 90 days, returned to work under the return to work guidelines set forth in the Cal/OSHA ETS and are asymptomatic do not need to be excluded if 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.
  • Employees not fully vaccinated and who have not had COVID-19 in the past 90 days and are asymptomatic must quarantine but may return to work after:
    • 14 days have passed since the last known close contact
    • 10 days have passed since the last known close contact and the employee wears a face covering and maintains six feet of distance while at the workplace until 14 days following the last date of close contact or
    • Seven days have passed since the last known close contact and the employee tested negative for COVID-19 at least five days since the last known close contact, wears a face covering and maintains six feet of distance while at the workplace until 14 days have passed following the last date of close contact.
  • Employees who had a close contact and develop COVID-19 symptoms are excluded from the workplace and returned upon the timeline applicable to symptomatic COVID-19 cases.
Definition of Fully Vaccinated “Fully vaccinated” means the person has received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series, a single dose COVID-19 vaccine that was FDA approved, an EUA from FDA or, for those vaccinated outside of the United States, listed for emergency use by the World Health Organization (WHO). The definition of “fully vaccinated” has been updated to acknowledge that those receiving “mix-and-match” vaccines may still qualify. “Fully vaccinated” now means:

  • A person’s status two weeks after completing primary vaccination with a COVID-19 vaccine with at least the minimum recommended interval between doses in accordance with the approval, authorization or listing that is: (1) approved or authorized for emergency use by the FDA, (2) listed for emergency use by the World Health Organization (WHO) or (3) administered as part of a clinical trial; or
  • A person’s status two weeks after receiving the second dose of any combination of two doses of a COVID-19 vaccine that is approved or authorized by the FDA or listed as a two-dose series by the WHO. The second dose must not be received earlier than 17 days (21 days with a 4-day grace period) after the first dose.

The Second Readopted ETS also maintains the majority of the Cal/OSHA ETS requirements in place. California employers must continue to maintain a COVID-19 prevention program that is effective, addresses, identifies and evaluates COVID-19 health hazards, provides for employee training on COVID-19 and other safety matters.

California employers should review their current Cal/OSHA ETS safety policies to ensure that their policy is updated with these latest changes by the January 14, 2022, implementation date. For assistance with these updates, you may contact the authors of this article or your McDermott lawyer for more information.

McDermott Will & Emery Law Clerk Paulina Chau contributed to this article.

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