The COVID-19 rules for California workplaces have changed once again, statewide. Now in effect, the newest version of Cal/OSHA’s COVID-19 Emergency Temporary Standards (“ETS”) make changes of importance to all employers, particularly as infection rates are on the rise.
The ETS are legal requirements, not recommendations. Significant changes made by the new ETS include:
Exclusion & Return to the Workplace: Cal/OSHA Aligns with CDPH
As guidance from the California Department of Public Health (“CDPH”) evolved concerning who must isolate or quarantine due to infection or exposure, respectively, and for how long, the differences between Cal/OSHA’s requirements and CDPH guidance became irreconcilable.
The new ETS jettison Cal/OSHA’s earlier criteria for who must be excluded from the workplace and when they may return to work. In the place of earlier criteria, the new ETS direct employers to comply with current CDPH guidance on exclusion and return to work, thereby harmonizing Cal/OSHA rules with CDPH guidance. Current CDPH guidance concerning who must isolate or self-quarantine and for how long, updated in early April, may be found here. The new ETS also require employers to keep up and comply with new CDPH guidance as the Department further revises their guidance on exclusion and return to work going forward.
Exclusion Pay: The Obligation Continues
Under the new ETS, employers continue to be obligated to pay exclusion pay as they were under prior versions of the ETS. The new ETS make no changes to the exclusion pay requirement.
COVID-19 Self-Tests: Now Easier
Under the new ETS, self-administered and self-read tests are acceptable without employees satisfying the earlier requirement that self-tests be live-proctored or on video, but “only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).” This new leniency may lead to employees giving employers self-test results more commonly, making it necessary for employers to know the new rules around such tests.
Face Coverings: Requirements Evolve
The former requirement that a compliant “face covering” under the ETS must not allow “light [to] pass through when held up to a light source” is abandoned in the new ETS. The new ETS maintain all of the earlier criteria for compliant face coverings, including the requirement that coverings be made of “a tightly woven fabric or non-woven material of at least two layers.”
The new ETS require that employers provide respirators to any employee on request, as opposed to only employees who are not fully vaccinated. Respirators include, for example, N95 masks.
The former requirement that employers provide compliant face coverings to all employees and ensure they are worn when employees are working indoors or in vehicles is eliminated by the new ETS.
“Fully Vaccinated”: Dumped
The prior ETS defined “fully vaccinated” and used the term in determining, for example, who employers must exclude from the workplace. The concept of “fully vaccinated” has been dropped by Cal/OSHA and does not appear in the new ETS. This change is a reflection, in part, of the fact that what is considered “fully vaccinated” is proving to be an evolving concept.
Cleaning and Disinfecting: A Burden Lifted!
The new ETS eliminate the earlier requirement that employers clean and disinfect “areas, material, and equipment” used by a person in the workplace who tests positive for, or is otherwise diagnosed with, COVID-19.
Likewise, the new ETS do not contain the earlier requirement that employers’ written COVID-19 Prevention Programs include a workplace cleaning and disinfection protocol. These changes were made in light of determinations over the course of the pandemic that the COVID-19 virus becomes aerosolized by speaking, coughing, etc. and is transmitted by another person inhaling the virus. Transmission by a person touching contaminated surfaces has proven to be far less of a risk.
The new ETS will remain in effect through at least December 31, 2022.
Employers should become familiar with the new ETS, determine how to best update their practices and likely revise their COVID-19 Prevention Program.
If we may help you, please contact the author or your Fox Rothschild LLP counsel.
This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.