Cal/OSHA’s third readoption brings further changes to its COVID-19 Emergency Temporary Standard

On April 6, 2022, the California Department of Public Health (CDPH) updated its isolation and quarantine guidance to no longer require close contacts to quarantine after exposure, though those not fully vaccinated or recently infected in the prior 90 days are advised to still be excluded from work for at least 5 days with testing.

Although several localities have stated they will not be following such relaxed guidance and will still mandate unvaccinated individuals to quarantine for five days after a close contact in accordance with CDC guidance, these changes hint at the beginning of the end for the government’s pandemic oversight. It may feel as though the pandemic is behind us, but California’s Division of Occupational Safety and Health (Cal/OSHA) Standards Board is not yet ready to lift all COVID-19-related safety measures for workplaces in California.

In fact, Cal/OSHA Standards Board approved a newly revised version of its COVID-19 Emergency Temporary Standard (ETS) on April 21, 2022, given the evolving COVID-19 landscape and the impending expiration of the ETS’s prior version on May 6, 2022, per the 90-day extension under Governor Gavin Newsom’s Executive Order N-5-22. As such, the revised ETS will be submitted to the Office of Administrative Law (OAL), which will have ten calendar days to review and decide on the proposed ETS.

The revised ETS is currently set to take effect on May 6, 2022 and to expire on December 31, 2022, at which time the ETS’s fate is unknown. Cal/OSHA may move to adopt a permanent standard aimed to generally address airborne infectious diseases like COVID-19, or the governor may issue an executive order extending the ETS provisions.

While some of the revisions to ETS conform to recent guidance already incorporated into the ETS (like CDPH’s face covering guidance), there are several additional changes for which employers should be prepared. Below, we discuss key revisions of the ETS’s third readoption and related recommendations for California employers to consider ahead of time.

Covered employers

The revised ETS still applies to all employees and places of employment in California, except the following:

• Workplaces with one employee who does not have contact with other persons
• Employees working from home
• Employees already covered by Cal/OSHA’s aerosol transmission standards (which generally includes certain health care facilities, laboratories and others) and
• Employees teleworking from a location of the employee’s choice which is not under the control of the employer.

Key revisions

Changes to key definitions impacting related requirements

Cal/OSHA revised several definitions used throughout the ETS, which impacts the related requirements. Some of these changes include the following:

• Close contact and high-risk exposure: These definitions were revised to align with the CDPH’s related definitions, switching terminology from “high-risk exposure” to “infectious period” and including references to definitions in CDPH orders or regulations.
• COVID-19 test: This definition was amended to provide that, to meet the ETS’s return-to-work criteria, a test may be both self-administered and self-read only if another means of independent verification of results can be provided, like a timestamped photograph of the results.
• Face coverings: The requirement that light does not pass through a mask when it is held up to a light source was removed from this definition, likely due to concerns that even some respirators (like N95s) may not meet that standard.
• Fully vaccinated: This entire definition was deleted, largely because the ETS no longer distinguishes between vaccinated and unvaccinated employees. However, such distinctions may still be important under local orders that are more restrictive than the ETS.
• Returned case: This new definition applies to COVID-19 cases in the 90 days after the initial symptom onset (or first positive test, if asymptomatic) for individuals who returned to work pursuant to the related criteria in the ETS and did not develop COVID-19 symptoms after returning.

Changes to exposure testing requirements

Given the new “returned case” definition above, the related testing requirement exception was revised. The prior version of the ETS generally required employers to make testing available to all employees who had close contact to a COVID-19 case in the workplace, except for employees who had COVID-19 in the last 90 days. However, the revised ETS replaces this exception language with “returned cases.”

Elimination of distinctions between vaccinated and unvaccinated employees

As noted above, the distinctions between vaccinated and unvaccinated employees were removed from the ETS. Accordingly, requirements previously limited to unvaccinated employees now apply to all employees. For example, the revised ETS requires employers to provide respirators (like N95s) for voluntary use to all employees upon request, while the prior version only required respirators be provided to unvaccinated employees upon request.

Similarly, while the current ETS only requires employers to make testing available to those employees with COVID-19 symptoms who are not fully vaccinated, the revised ETS eliminates this limitation and, accordingly, requires employers to offer testing to all employees with COVID-19 symptoms regardless of vaccination status. Employers should prepare for potentially higher costs due to this expanded requirement.

Reduced face covering requirements

Although Governor Newsom already issued an Executive Order striking the ETS face covering language that contradicted CDPH updated face covering recommendations, the ETS revisions formally conform to and reference CDPH orders. However, employers must keep in mind other face covering provisions of the ETS that remain in effect, such as permitting employees to voluntarily wear face coverings unless doing so creates a safety hazard.

In addition, those exempt from any applicable face covering requirement (including those with a medical or mental health condition or disability, or those who perform tasks that cannot be completed with a face covering) no longer must maintain six feet of social distance from others but still must be tested at least once a week during paid time at no cost to the employee. 

Cleaning and disinfection rules eliminated

The specified cleaning and disinfection procedures section in prior version of the ETS, such as regular cleaning of frequently touched surfaces and objects, were entirely removed from the revised ETS.

Revised exclusion and return-to-work criteria

The revised ETS generally removes specific exclusion and return-to-work requirements for close contacts. Instead, the revisions specifically reference current CDPH guidance for those who had close contact. In addition, the revised ETS requires employers to review such guidance and develop, implement and maintain effective policies to prevent transmission of COVID-19 by close contacts.

While the references to CDPH guidance throughout the ETS are generally a welcomed change in that updates to CDPH guidance will automatically apply and the ETS will not include outdated language, it fails to account for times when CDC and CDPH guidance contradict one another, like the recent CDPH isolation and quarantine guidance mentioned above.

In addition, the revised ETS alters return-to-work criteria for COVID-19 cases. Specifically, all COVID-19 cases (regardless of vaccination status or previous infection) who do not develop COVID-19 symptoms or whose COVID-19 symptoms are resolving may not return to work until:

• At least five days have passed from the COVID-19 symptom onset (or from the first positive COVID-19 test, if asymptomatic)
• At least 24 hours have passed since a fever of 100.4 F or higher has resolved without the use of fever-reducing medicine and

• A negative COVID-19 test from a specimen collected on the fifth day or later is obtained, or ten days have passed from symptom onset (or from the first positive COVID-19 test if asymptomatic), if the employee is unable to test or if the employer does not require a test.

Similarly, COVID-19 cases, regardless of vaccination status or previous infection, whose COVID-19 symptoms are not resolving may not return to work until (1) at least 24 hours have passed since a fever of 100.4 F or higher has resolved without the use of fever-reducing medication and (2) symptoms are resolving or 10 days have passed since symptom onset.

In addition, all COVID-19 cases, regardless of vaccination status, previous infections or lack of symptoms, must wear a face covering in the workplace until ten days have passed since symptom onset, or from the first positive COVID-19 test, if asymptomatic.

Despite these changes to exclusion and return-to-work criteria, employers should keep in mind that exclusion pay requirements remain in effect.

New outbreak obligations

The revised ETS includes several minor changes in relation to outbreak-specific requirements, most of which are to align with the revised definitions and other changes noted above. However, there are some key changes in the outbreak sections.

For example, in the section discussing multiple COVID-19 infections and outbreaks, a new requirement was added for close contacts. Specifically, employees who have had close contact must have a negative test taken within three to five days after the contact or must be excluded and follow return-to-work requirements noted above for COVID-19 cases from the date of the last known close contact. In addition, instead of requiring the use of cleanable solid partitions where six feet of physical distancing is not feasible, like in the prior version, the revised ETS requires as much distance between persons as feasible.

Similarly, in the major outbreak section, the revised ETS clarifies that employers must either (1) require employees in the exposed group to undergo COVID-19 testing at least twice a week during a major outbreak (rather than only making such testing available) or (2) exclude employees in the exposed group and follow return-to-work criteria for COVID-19 cases from the date the outbreak begins.

Please note that it is currently unclear if the references to the COVID-19 return-to-work criteria in the outbreak sections is in error and whether references to the preceding section applicable to close contacts would be more appropriate. However, this issue may be clarified when Cal/OSHA updates its related FAQ guidance, which currently aligns with the prior readoption of the Cal/OSHA ETS.

Employer-provided housing and transportation obligations reduced

The revised ETS removes vaccination-based distinctions; cleaning and disinfection requirements; obligations to instruct residents not to share unwashed dishes, glasses, cups, utensils and similar items; and the exemption from exclusion requirements following close contact for employees who previously had COVID-19 in the prior 90 days. However, the revised ETS included new requirements related to the review of CDPH and local health department recommendations for face coverings and implementation of related policies and training for employees on such requirements.

Next steps

While most of the ETS provisions remain in effect, California employers are encouraged to review all changes to the ETS with counsel and to evaluate their current COVID-19 prevention plan, notices and other related documents and operations as soon as possible to ensure compliance with the revised ETS by its effective date. California employers should keep in mind that the governor accelerated the effective date of the prior version of the ETS, so it is possible he may do so again with these revisions.

If you have any questions regarding this development or other COVID-19-related requirements, please contact the authors, your DLA Piper relationship attorney or the DLA Piper Employment group at CoronavirusEmployment@dlapiper.com.

UPDATE 5/10: The revised ETS was approved by OAL. The approved version went into effect on May 6, 2022 and is scheduled to remain in effect until December 31, 2022. The revised ETS, along with updated FAQ guidance and fact sheets, are available at https://www.dir.ca.gov/dosh/coronavirus/ETS.html.