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| Jared Speier |
On April 26, the Occupational Safety and Health Standards Board — which is part of the California Division of Occupational Safety and Health — voted to approve the third readoption of the COVID-19 emergency temporary standards, or ETS. The new standards became effective on May 6, when the current ETS expired, and will be effective through at least Dec. 31.
If the standards remain unmodified by executive order, which has happened before, the new ETS makes some significant changes to the previous version.
While seemingly minor, many of these changes affect day-to-day operations of the workplace. Employers should look to update their COVID-19 prevention plans to maintain compliance with these new standards.
Broadening Who Must Be Offered Testing
Surprisingly, the new ETS removes the definition of fully vaccinated. Effectively, this means that certain portions of the ETS will apply to every employee regardless of their vaccination status.
Importantly, employers will now have to offer COVID-19 testing to all employees exhibiting symptoms of COVID-19, with the exception of returned cases.
Previously, only employees who were not fully vaccinated had to be offered testing when they exhibited symptoms. While testing must still be offered to employees after a close contact or consistent with the return-to-work requirements of the ETS, this change significantly broadens who must be offered testing in the workplace especially for employers who have a high percentage of vaccinated employees.
Employers should look to stock up on test kits or work with a testing provider to ensure they will be able to keep offering testing as required.
Offering N95 Masks to All Employees
Similar to the previous change, the removal of the definition of fully vaccinated also affects which employees may request an N95 mask at the employer's expense. Under the updated ETS, all employees may now request, and the employer must provide, an N95 mask regardless of vaccination status.
Previously, only unvaccinated employees had this option. The demand for N95 masks may be low now given lower rates of transmission. However, in the event of another spike in COVID-19, employers should look to stock up on N95 masks to keep up with any demand from employees.
Prevention Plans Should Still Ask for Vaccination Status
While the definition of fully vaccinated has been removed from the ETS, it is still relevant to consider an employee's vaccination status. For instance, the
California Department of Public Health, or CDPH, guidance on quarantine and isolation — which now governs when an employee can return to work after a close contact — considers the employee's vaccination status to determine when the employee can return.
Knowing your employees' vaccination status is essential to making this determination and getting employees back to work as soon as possible. Accordingly, it would be prudent to keep up records of employees' vaccination status and maintain them as a requirement in your COVID-19 prevention plan.
Changing Exclusion and Return-to-Work Requirements
While the old ETS had detailed requirements on who had to be excluded from the workplace after a close contact, the new ETS has shifted all that responsibility to the CDPH. The ETS now requires that employers review current CDPH guidance regarding "quarantine or other measures to reduce transmission" to "develop, implement and maintain effective policies" to prevent COVID-19 transmission from close contacts.
Even the definition of close contact is now subject to change by CDPH regulation or order. While this provides employers with more flexibility it also means that the standards can be changed more swiftly by the CDPH.
Employers should remain vigilant to stay on top of any revisions to the CDPH's isolation and quarantine guidance. Additionally, while the new ETS defers to the CDPH on most of the exclusion requirements it leaves in the exclusion pay requirement for employees with a work-related exposure.
Finally, and perhaps most importantly, the deference to the CDPH standards only applies to employees who have been exposed to COVID-19. Employees who constitute a COVID-19 case — i.e., tested positive, ordered to isolate, etc. — or are excluded in the context of an outbreak or employer-provided housing cannot return to work until the requirements of the ETS are met.
As if that wasn't enough, the new ETS also lays out updated return-to-work requirements for these employees. Those requirements apply regardless of the employee's vaccination or previous infection status and are:
1. If the employee does not develop symptoms or symptoms are resolving, they cannot return until:
- At least five days have passed since the date symptoms began or from the date of the first positive test;
- At least 24 hours have passed since a having a fever of 100.4 F or higher without the use of fever reducing medication; and
- A negative test collected on the fifth day or later comes back negative. If a test is not obtained or comes back positive the employee cannot return until 10 days have passed.
2. If the employee's symptoms are not resolving, they cannot return until:
- At least 24 hours have passed since a having a fever of 100.4 F or higher without the use of fever reducing medication; and
- Symptoms are resolving, or 10 days have passed from when the symptoms began.
When returning to the workplace, employees must also wear a face covering in the workplace until 10 days have passed since symptom onset or if they did not have symptoms, until 10 days have passed since the date of their first positive test. Additionally, these requirements apply even if an employee was excluded due to a close contact under the CDPH guidelines and later test positive.
Employers should revise their COVID-19 prevention plans to ensure that they set two standards for returning to work: one for employees with a close contact and another for employees who test positive or are ordered to isolate.
Tests No Longer Have to Be Monitored
This was a welcome change to many employers. Previously, tests could not be self-administered and self-read. This meant that any employee administering their own test had to be observed by the employer either in person or over zoom.
Employers may now remove any requirement that tests have to be monitored and simply require that employees submit proof of the test, like a time-stamped photo of the results.
Reduced Cleaning Obligations
The new ETS removed surfaces and objects potentially contaminated with SARS-CoV-2 from the definition of COVID-19 hazard. Additionally, the new ETS removes all cleaning and disinfection requirements, including the requirement to clean an area used by a COVID-19 case.
This should ease the burden on employers who have been spending significant time and money sanitizing the workplace.
Addition of "Returned Case" Definition
The new ETS adds the term "returned case" to the definitions section. A returned case is an employee who returned to work after testing positive and did not develop symptoms after returning. This person is considered a returned case for 90 days after the initial onset of symptoms, or if they never had symptoms 90 days after their positive test.
Returned cases do not need to be provided with a test after a close contact. Employers should look to update their testing requirements as these employees represent one of the few exceptions to this testing requirement.
High Risk Exposure Period Now Defined as Infectious Period
The requirements remain the same, however, the new definition includes a caveat that the requirements may change if otherwise defined by CDPH regulation or order. For now, the infectious period is two days before the onset of symptoms until 10 days after symptoms began, 24 hours have passed since no fever without fever reducing medication and symptoms are resolving.
If the employee is asymptomatic, the infectious period is two days before the positive test until 10 days after. To implement this change, employers should revise the terms used in their prevention plans and keep an eye out for any CDPH regulations or order affecting this standard.
No More Light Test
The requirement that face coverings not allow light to pass through has been removed. This is a welcome revision as Cal/OSHA never published FAQs explaining this confusing requirement.
To the extent your COVID-19 prevention plan included references to the light test, you can remove them.
No More Partitions During Outbreaks
The minor and major outbreak provisions of the new ETS no longer require consideration or use of cleanable solid partitions whenever social distancing cannot be maintained.
Conclusion
While many of these changes are minor, they can significantly influence how you operate your business. Employers should look to update their COVID-19 protocols as noted above to ensure that they remain up to speed with the latest requirements.
Jared W. Speier is an associate at Stradling Yocca Carlson & Rauth PC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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