Member Article

On December 16, 2021, the Cal/OSHA Standards Board readopted the Emergency Temporary Standards (ETS), but included several revisions which will go into effect on January 14, 2022 and which will remain in effect for three months. In addition, CDPH issued updated guidance for the general public this month. That guidance on isolation and quarantine requirements has now replaced the ETS exclusion periods and return to work criteria for all workers as of January 14, 2022. As well, CDPH now requires the use of face coverings by all employees when indoors, until February 15, 2022, so guidance as to face coverings below only applies after that date.

Under the updated CDPH guidance, the requirements are as follows:

• Any employee who tests positive for COVID-19 must be excluded from the workplace
  • Exclusion can end after day 5 if symptoms are resolving (so long as no fever) and employee tests negative
  • Exclusion can end after day 10 if symptoms are resolving (so long as no fever) and employee has not tested
  • Once returned to the workplace, the employee must wear face coverings around others for a total of 10 days after the positive test
• Unvaccinated employee with close contact with a person who has COVID-19 must be excluded from the workplace
  • They must test on day 5 and may return to workplace if no symptoms and negative test, but must wear face coverings around others for 10 days
  • If they do not test, they may return to workplace after day 10 if they have no symptoms
  • A vaccinated employee who is booster-eligible but has not received their booster dose is treated as unvaccinated after a close contact unless:
    • Asymptomatic
    • Receives a negative test within 3-5 days after last exposure
    • Wears a face covering around others for 10 days
• Vaccinated and boosted (or vaccinated but not yet booster eligible) employees with close contact with a person who has COVID-19 need not be excluded from the workplace so long as they
  • Have no symptoms
  • Have a negative test on day 5
  • Wear face coverings around others for 10 days

We summarized the June 2021 version of Cal/OSHA’s ETS here. The ETS still applies to most workers who are not covered by the Aerosol Transmissible Diseases standard. Some of the more significant changes to the June version, which do not appear to have been superseded by CDPH guidance and which go into effect on January 14, are as follows:

• Employers are now required to make COVID-19 testing available at no cost, during paid time, to fully-vaccinated employees who had a close contact at the workplace with a COVID-19 case, even if the employees are asymptomatic.
• Cloth masks that allow light to pass through them are not a permitted face covering in the workplace
• Employers are now required to make weekly testing available to fully-vaccinated, asymptomatic employees in the exposed group during an outbreak, and are now required to make twice-weekly testing available to fully-vaccinated, asymptomatic employees in the exposed group during a major outbreak
  • Outbreak is still defined as three or more employees testing positive for COVID-19 within an exposed group during a 14-day period
  • Major outbreak is still defined as 20 or more COVID-19 cases in an exposed group within a 30-day period
• "Worksite" now specifically excludes an employee's personal residence, locations where an employee works alone, and remote work locations chosen by the employee
• Testing can now include over-the-counter home tests with self-read results, so long as the employer or a telehealth professional observes the testing and results

Employers also need to comply with any local health orders as well as any applicable federal rules relating to COVID-19 in the workplace. On January 13, the U.S. Supreme Court blocked implementation of a federal OSHA rule that would have required employees of many employers to become vaccinated against COVID-19 or face regular testing. The Court let stand a separate rule, however, which requires vaccinations for health-care workers in nursing homes, hospitals, and other facilities that receive Medicare and Medicaid payments from the federal government.