The newest version of the Cal/OSHA ETS goes into effect today, Jan. 14, 2022, and will expire on April 15, 2022. A redline of the recently expired Cal/OSHA ETS and the newest Cal/OSHA ETS is available HERE. The newest Cal/OSHA ETS, which was drafted prior to Dec. 16, 2021, is already partially out-of-date based on the California Department of Public Heath’s Guidance For the Use of Masks (released Jan. 5, 2022) and the CDPH’s Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public (released Jan. 8, 2022); these changes have been addressed in the Cal/OSHA ETS FAQs.
With all of these changes occurring (not to mention all of the litigation surrounding the now-stayed federal OSHA ETS), California employers are asking: How do I comply with the current Cal/OSHA ETS and the updated CDPH Guidance? Here are the key points to ensure you are in compliance:
1. New Shorter Isolation and Quarantine Periods
Isolation: When an employee has COVID-19 (even without symptoms).
Quarantine: These requirements apply to employees who are (A) unvaccinated, or (B) vaccinated and booster eligible but have not yet received their booster; and who have been in close contact with someone who has confirmed COVID-19 (laboratory-confirmed or clinical diagnosis). Close contact means the employee was less than six feet away from a person who has COVID-19 for a cumulative total of 15 minutes or more over a 24-hour period.
2. Face Coverings Must Be Worn Until Feb. 15, 2022: The CDPH is requiring masks to be worn in all indoor public settings, irrespective of vaccine status, until Feb. 15, 2022. This requirement will be updated as CDPH continues to assess conditions on an ongoing basis. For those employees who are exempted from wearing a face covering for medical or disability reasons, and who cannot wear a nonrestrictive alternative, the employee shall be at least six feet apart from all other persons and either fully vaccinated or tested at least weekly for COVID-19 during paid time and at no cost to the employee.
3. Face Covering Now Means: A surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers (i.e., fabrics that do not let light pass through when held up to a light source) that completely covers the nose and mouth and is secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters are worn, they shall have two layers of fabric or be folded to make two layers. A face covering is a solid piece of material without slits, visible holes, or punctures, and must fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. A face covering does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric. This definition includes clear face coverings or cloth face coverings with a clear plastic panel that, despite the non-cloth material allowing light to pass through, otherwise meet this definition and which may be used to facilitate communication with people who are deaf or hard-of-hearing or others who need to see a speaker’s mouth or facial expressions to understand speech or sign language respectively.
4. Fully Vaccinated Means: An employee is considered “fully vaccinated” if the employer has documented that the employee received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. For purposes of avoiding the quarantine requirements discussed above, an employee must be “fully vaccinated” and, if they are booster-eligible, they must have received their booster shot.
5. COVID-19 Test Now Means: A test that has been (A) Cleared, approved, or authorized, including in an Emergency Use Authorization (EUA), by the United States Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test); (B) Administered in accordance with the authorized instructions; and (C) Not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. As a practical matter this means that to return to work, an employee may take an over-the-counter, FDA-approved, rapid test, but it must be read by a telehealth proctor or the employer.
6. Worksite’s Updated Definition: The term “worksite” is key to determining who must be notified of potential exposure. Worksite means the building, store, facility, agricultural field, or other location where a COVID-19 case was present during the high-risk exposure period. It does not apply to buildings, floors, or other locations of the employer that a COVID-19 case did not enter. It now also does not apply to 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.
7. COVID-19 Testing: An employer must make COVID-19 testing available at no cost, during paid time, to all employees who had a close contact in the workplace, and provide them with the information on benefits. There is still an exception if an employee had confirmed COVID-19 (laboratory-confirmed or clinical diagnosis) within the past 90 days. There is no longer an exception for employees who were fully vaccinated prior to the close contact.
8. Housing Update: In housing units, employers shall maximize the quantity and supply of outdoor air and increase filtration efficiency to the highest level compatible with the existing ventilation system. If there is not a Minimum Efficiency Reporting Value (MERV) 13 or higher filter in use, portable or mounted High Efficiency Particulate Air (HEPA) filtration units shall be used, to the extent feasible, in all sleeping areas, regardless of vaccination status.
Disclaimer: Laws, regulations, and guidance on matters related to COVID-19 change rapidly. Please contact your Payne & Fears attorney for current guidance.