Ca/OSHA Considers Reconsidering COVID-19 ETS – Community News

Ca/OSHA Considers Reconsidering COVID-19 ETS

On December 16, 2021, the Occupational Safety and Health Standards Board of the California’s Division of Occupational Safety and Health (Cal/OSHA) will meet to consider the reconsideration of the COVID-19 Emergency Temporary Standard (ETS), with substantial changes and updates that must be implemented. effective January 14, 2022.

The original Cal/OSHA COVID-19 ETS went into effect on November 30, 2020 and the workplace standards were updated on June 17, 2021 to reflect the availability of vaccines. Following the issuance of the COVID-19 ETS in November 2020 and the update, the Cal/OSHA Standards Board will vote to adopt this latest proposal on December 16, 2021. A vote for a permanent settlement is likely to take place before Cal/OSHA ETS expires after 90 days.

Pending the December vote, Cal/OSHA released an updated draft on December 3, 2021. The updated text suggests some changes to the previous language:

  • COVID-19 would no longer be defined as an infectious disease and would instead be simply defined as “the disease caused by SARS-CoV-2”.

  • Acceptable testing would be expanded beyond viral testing to include home testing, over-the-counter testing, and point-of-care testing. The proposed regulation would exclude tests that are both self-administered and self-read unless the employer or an authorized telehealth proctor observes them.

  • The proposal would require face coverings to be made of “fabrics that do not transmit light when held against a light source” and be a “sturdy piece of material with no splits, visible holes or holes” [that] fit[s] tight over the nose, mouth and chin.” It is unclear what light level is allowed and how this vague term will be interpreted.

  • The definition of “work location” excludes remote work locations.

  • The definition of the workplace would be expanded to include employees who were ‘in the same workplace on the premises’.

  • Covered employers would be required to test vaccinated workers who have close contact in the workplace. Currently, insured employers are not required to offer testing to vaccinated employees.

  • Exclusion requirements do not apply to employees who wear face coverings and maintain a distance of 1.5 meters from others for 14 days after the last date of close contact in the workplace. This includes vaccinated workers who do not develop symptoms following an exposure. (Under current regulations, these vaccinated workers can return to work without additional precautions.)

  • Return to work requirements for those who had close contact would be adjusted for employees who wear face coverings, keep a meter and a half away and undergo COVID-19 testing at least five days after the last date of close contact.

  • The exception to the return to work criteria for employers with an acute staff shortage would be abolished.

  • Exemptions for fully vaccinated individuals related to the provision of face coverings, testing and ventilation in homes would be omitted. This very substantial change would mean employers would need to adjust their COVID-19 Prevention Program.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.National Law Review, Volume XI, Number 341

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