Seyfarth Synopsis: On December 16, 2021, the Cal/OSHA Standards Board voted to readopt the COVID-19 Emergency Temporary Standard (“ETS”) with changes that will take effect January 14, 2022. This readoption includes many changes to the current ETS, including an elimination of many of the current distinctions between vaccinated and unvaccinated workers.
The first iteration of the Cal/OSHA ETS took effect on November 30, 2020. Under California administrative procedure, an emergency regulation can be readopted twice. The Cal/OSHA ETS was first readopted (and revised) on June 17, 2021. We’ve been blogging all along the way, and for anyone who’s missed out on the saga, you can read about it starting here.
With the December 16, 2021 second readoption, the end of the Cal/OSHA COVID-19 ETS initially appeared to be inching closer: it was expected to expire April 14, 2022 in alignment with the anticipated effective date of Cal/OSHA’s proposed permanent COVID-19 standard that would be effective for two years. However also on December 16, 2021, the Governor issued an Executive Order permitting a third readoption of the ETS, so long as it does not extend beyond December 31, 2022. Given the EO, which was surely issued at the urging of Cal/OSHA, it appears likely that Cal/OSHA will table consideration of a permanent standard and instead readopt the ETS for a third time at some point in 2022.
In the meantime, the second readoption of the ETS, with its changes from the prior two versions, is the current law of the land.
Highlights of the newly revised ETS include the following:
- A new definition of “COVID-19 test.” When testing is required under the ETS, is cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Which means that employees won’t be able to simply report results of a home-test to their employer.
- Changes to permissible types of face coverings. Despite harsh opposition from commenters, Cal/OSHA’s new standard says that permissible face coverings include surgical masks, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers that does not let light pass through when held up to a light source (except for clear face coverings worn for accommodations purposes). This means that many of the cloth masks that have been used by employees will no longer be acceptable under this new standard—including the masks being worn by many of the stakeholders at the meeting.
- A new definition of “fully vaccinated” that permits mix-and-match. Cal/OSHA’s new, more detailed definition, specifies that fully vaccinated means either the employee is two weeks past completion of a primary vaccine (with at least the minimum recommended interval between doses for a two-dose series), or two weeks past a second dose of any combination of two doses of a vaccine, so long as the second dose was not received earlier than 17 days after the first dose. As always, a compliant vaccine has to be FDA approved, have an emergency use authorization by the FDA, or listed for emergency use by WHO, but now Cal/OSHA also allows employees who had their vaccine administered as part of a clinical trial to be considered fully vaccinated under certain circumstances.
- A new definition of “worksite” for purposes of COVID-19 employee notification. The revised ETS clarifies that a “worksite” does not include locations where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely. This new definition may, in some circumstances, enable employers to forego employee notification that it would have otherwise been obligated to provide under the previous version of the ETS.
- Testing must be provide to any workplace close contacts, regardless of vaccination status. It used to be that employers only needed to offer COVID-19 testing to unvaccinated workplace close-contacts. But now, because of the rapidly evolving virus and breakthrough cases in the workplace, Cal/OSHA will require employers to offer testing to employees, vaccinated or not, who had a workplace close contact. The only exception for close-contact testing are employees who recovered from COVID-19 in the past 90 days and are asymptomatic.
- Different requirements around fully vaccinated and not fully vaccinated close contacts.
- No quarantine for fully vaccinated employees, but masks and social distancing required. Fully vaccinated employees who have had close contact with a COVID-19 case still do not need to be excluded from work so long as they are asymptomatic. However, now they must wear a face covering and maintain social distance from others at the workplace for 14 days following the last date of close contact. The same is true for asymptomatic employees with close contact who have recovered from COVID-19 infection in the prior 90 days: no quarantine necessary but they must wear face coverings and be socially distanced in the workplace for 14 days.
- Changes to quarantine requirement for not fully vaccinated employees, including a 7-day option. For employees who are not documented as fully vaccinated, a 10-day quarantine is still permitted, but only if the employee maintains six feet of distance from others at work and wears a face covering for 14 days following the last date of close contact. There’s also an option for a 7 day quarantine if the employee tests negative for COVID-19 on day 5 or after, and the employees adheres to the face covering and social distancing requirement until day 14. The 7 day option was previously limited to healthcare workers during critical staffing shortages.
- Outbreak testing can’t exclude fully vaccinated employees. Now, in the event an employer is required to implement outbreak testing for an “exposed group” of employees, all employees regardless of vaccination status must be offered the testing.
What Else Should Employers Know?
The second readoption of the ETS did not bring any changes to the general Cal/OSHA face covering rule which says that fully vaccinated employees need not wear face coverings indoors. However, employers should be aware that on December 15, 2021, a California Department of Public Health state-wide universal indoor masking order went into effect until January 15, 2022. This means that between December 15, 2021 and January 15, 2022, employers in California will nonetheless need to require universal indoor masking, regardless of vaccination status.
Stay tuned for the rapid fire developments on the workplace safety front in California. If you are facing difficult questions from your employees in this space that you need help answering, please don’t hesitate to reach out to one of the authors of this post or a member of our Workplace Safety team.