Tightening the Screws: Cal/OSHA Issues Second Revised Emergency Temporary Standards

On December 16, 2021, California’s Occupational Safety and Health Standards Board readopted and revised the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards for the second time (the “Second Revised ETS”).  The Second Revised ETS takes effect on January 14, 2022, and is set to expire on April 14, 2022.  However, Governor Newsom issued an Executive Order permitting a third readoption of the Emergency Temporary Standards provided it is not extended beyond December 31, 2022.  Therefore, it is unlikely that the Emergency Temporary Standards will completely expire in April 2022, as previously anticipated.

In the Second Revised ETS, many of the requirements remain unchanged.  Employers must still establish, implement, and maintain an effective written COVID-19 Prevention Program that identifies and evaluates employee exposures to COVID-19 health hazards, implements effective policies and procedures to correct unsafe and unhealthy conditions, and allows adequate time for hand washing and cleaning frequently touched surfaces and objects.  Employees who are excluded from work because they have COVID-19 or had a close contact at work are still entitled to earnings and benefits continuation unless they are receiving disability payments, workers’ compensation payments, or temporary disability payments.  In addition, respirators must be available upon request to unvaccinated employees and employers must continue to document employee vaccination in order for an employee to be considered “fully vaccinated.”  For more information on the prior versions of the Emergency Temporary Standards, please see our November 2020 and June 2021 E-Alerts. 

Key Changes in the COVID-19 Second Revised ETS

“Worksite” definition updated

The Second Revised ETS updated its definition of “Worksite” to specifically exclude an employee’s personal residence, locations where an employee works alone, and remote work locations chosen by the employee.  This new definition is important in regard to an employer’s obligation to notify employees of a COVID-19 case and may allow employers to avoid notification requirements that would have been required under the prior version of the Emergency Temporary Standards.  

Employers must provide tests

Employers are now required to make COVID-19 testing available at no cost and during paid time to fully vaccinated employees following a “close contact” with a COVID-19 case in the workplace, even if the employee is asymptomatic.  This goes beyond the existing requirement to provide COVID-19 testing to unvaccinated employees and symptomatic vaccinated employees following close contact.  

No solo at-home tests

When testing is required under the Second Revised ETS, the test may no longer be self-administered and self-read unless observed by the employer or an authorized telehealth proctor.  Therefore, employees may no longer simply report the results of at-home tests to their employer.

Face Coverings must pass the light test

The Second Revised ETS updated its definition of “Face Covering” to include surgical masks, medical procedure masks, respirators such as N95s, or “tightly woven fabric or non-woven materials of at least two layers (i.e., fabrics that do not let light pass through when held up to a light source.”

Return-to-work requirements updated

  • Fully Vaccinated

Asymptomatic, fully vaccinated employees who have had a close contact with a COVID-19 case still do not need to be excluded from the workplace.  However, under the Second Revised ETS, they are now required to wear a face covering and maintain at least six feet of distance from others at the workplace for 14 days following their last close contact in order to return to work.   

  • Not Fully Vaccinated

The June 2021 version of the ETS permitted employees who were not fully vaccinated and who never developed COVID-19 symptoms to return to work after 10 days following a close contact exposure.  The Second Revised ETS requires those employees to be excluded for 14 days with two exceptions.  First, an asymptomatic employee who is not fully vaccinated can return to work after 10 days following a close contact exposure provided the employee wears a face covering and maintains six feet distance from other workers.  Second, an asymptomatic employee who is not fully vaccinated may return to work 7 days after the last known close contact exposure provided the employee tested negative for COVID-19 at least five days after the last known close contact and the employee wears a face covering and maintains six feet distance from other employees for 14 days following the close contact.

Remember, employers, are required to continue benefits and earnings for employees who are unable to work due to a COVID-19 exposure regardless of the employee’s vaccination status unless the employer can prove that the COVID-19 exposure was not work-related.

The twists and turns of Cal/OSHA’s response to the COVID-19 pandemic are difficult to navigate.  Contact your SFSS&W attorney if you have any questions regarding the Second Revised ETS and its impact on your workplace.

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Millicent N. Sanchez ext. 8203 msanchez@swerdlowlaw.com
Janet I. Swerdlow ext. 8202 jswerdlow@swerdlowlaw.com
David A. Wimmer ext. 8201 dwimmer@swerdlowlaw.com
Emily G. Camastra ext. 8213 ecamastra@swerdlowlaw.com
Meghan E. O’Kane ext. 8204 mokane@swerdlowlaw.com
Lori M. Yankelevits ext. 8205 lyankelevits@swerdlowlaw.com
Karen E. Rhodes ext. 8206 krhodes@swerdlowlaw.com
Allison Musante ext. 8207 amusante@swerdlowlaw.com

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