Cal / OSHA approves third and final reinstatement of temporary standards for COVID-19 emergency prevention until the end of the year | Troutman Pepper
Cal / OSHA approves third and final reinstatement of temporary standards for COVID-19 emergency prevention until the end of the year |  Troutman Pepper

Cal / OSHA approves third and final reinstatement of temporary standards for COVID-19 emergency prevention until the end of the year | Troutman Pepper

Since November 2020, California employers have struggled to comply with onerous requirements under the Cal / OSHA COVID-19 Prevention Emergency Temporary Standards (ETS), which originally entered into force on November 30, 2020. The ETS was originally revised and reintroduced on June 17. , 2021, with a second round of revisions and re-adoption on 16 December 2021. The Board of Health and Safety Standards voted to adopt third and final revision and re-admission of ETS (Third Revised ETS), which is expected to enter into force on 6 May or before, when the Office of Administrative Law reviews and files with the Minister of Foreign Affairs. According to Governor Newsom’s executive order N-23-21, the third revised ETS can only extend through December 31st. Following the expiry of the third revised ETS, the Board of Directors is expected to implement permanent standards in the future.

Overview of key changes

Although the third revised ETS reflects relatively fewer changes than previous re-elections, some of the changes are significant:

  • Eliminates any distinction based on vaccination status, including for enforcement of face coverage and test requirements.

  • Extends free trial requirements to all symptomatic staff, regardless of vaccination status or whether COVID-19 exposure was allegedly work-related.

  • Allows employees to present self-administered and self-read tests when required.

  • Creates limited exceptions to test requirements for “returned cases” or for those previously infected with COVID-19 and returning to work for up to 90 days after an employee’s first test or symptom onset.

  • Eliminates requirements for physical distance (except during periods of major outbreaks) and requirements for physical division.

  • Postpones to California Department of Public Health (CDPH) exclusion guidelines and criteria for returning to work for close contact with COVID-19.

  • Revises criteria for return to work, regardless of vaccination status.

  • Eliminates cleaning and disinfection procedures.

Further explanation of third revised ETS

  1. When required by CDPH;

  2. For 10 days after an employee’s first positive test (for asymptomatic employees) or after an employee first develops symptoms; and

  3. For all indoor workers in the vulnerable group during an outbreak or major outbreak, or outdoor workers in the vulnerable group who cannot keep physical distance.

    • The revised definition of “face coverage” eliminates the previous requirement for “light testing”, which banned masks with substances that let light pass through.

    • Employees who are exempt from wearing face clothing (such as due to disability) are no longer required to take social distance, but they must continue to undergo weekly free tests.

  • Definitions

    • The third revised ETS now uses the term “infectious period” (instead of “high-risk exposure period”) when referring to the two-day period before an employee develops symptoms or tests positive. This change has no practical effect, but instead appears to be an attempt to adapt to the CDPH rules.

    • The Third Revised ETS adds a new designation for a “returned case” or any person who returns to work and does not develop COVID-19 symptoms for a period of 90 days after the first onset of COVID-19 symptoms or after an initial positive test (for asymptomatic staff), unless a second period is ordered by CDPH.

  • Physically distanced

    • The third revised ETS eliminates requirements for physical distance, except during periods of outbreaks and major outbreaks for employees in the vulnerable group.

    • The third revised ETS also eliminates all physical breakdown requirements, even where physical distance cannot be maintained during periods of eruptions and major eruptions.

  • Criteria for returning to work

    • The third revised ETS distinguishes back to work criteria on the basis of an employee’s symptoms, in contrast to the previous standards, which largely focused on vaccination status.

      • For COVID-19 cases whose symptoms disappear or no symptoms:

        • Five (5) days have passed since the date the symptoms began, or the employee’s first positive test;

        • Twenty-four (24) hours have passed since the fever disappeared without the use of antipyretic medication;

        • An employee presents a negative COVID-19 test collected on the fifth day or later; and

        • If the employee is unable to test, or the employer does not require a test, the employee must be excluded for 10 days.

      • For COVID-19 cases whose symptoms do not go away:

        • Twenty-four (24) hours have passed since the fever disappeared without the use of antipyretic medication; and

        • The symptoms disappear or it has been 10 days since the symptoms started.

      • After close contact with COVID-19:

    • As mentioned above, employees should wear a face mask until 10 days have elapsed from either the first positive test (for asymptomatic staff) or from the time the symptoms first developed regardless of vaccination status or previous infection.

  • Testing

    • Employees can now present self-administered and self-read COVID-19 tests as needed if they are accompanied by another way of independently verifying the results, such as a time-stamped photograph. Previously, employees could only give negative results from a test that was not self-administered or self-read unless it was observed by the employer or authorized telemedicine physician.

    • The third revised ETS further expands the testing obligations by requiring free on-time testing to all symptomatic staff regardless of vaccination status and regardless of whether the employee claims the exposure was work-related. Previously, employers were only required to provide free testing to asymptomatic employees who were not fully vaccinated.

    • Employers do not have to provide tests for “returned cases” (e.g, those who returned to work and did not develop COVID-19 symptoms for 90 days) after close contact with COVID-19 in the workplace, including during an outbreak. However, there is no such exception for “recurrent cases” during a major outbreak.

    • Employers must provide tests to all employees in the exposed group during a major outbreak (whereas previous standards only required employers to provide tests).

  • Outbreak

    • Outbreak (e.gthree or more COVID-19 cases in an exposed group within a 14-day period).

      • Employers must continue to provide free testing to all employees in the exposed group, regardless of vaccination status, with the exception of “returned cases”. As a reminder, employers should arrange for testing immediately after an outbreak and then again a week later during an outbreak.

      • Employers must now specifically provide tests for close contact employees during an outbreak within three to five days of close contact or exclude close contact employees from the workplace until the criteria for returning to work are met.

    • Major outbreaks (e.g20 or more COVID-19 cases in an exposed group within a period of 30 days).

Updated frequently asked questions

In line with previous re-elections, Cal / OSHA is expected to update its Frequently asked questions and other resources to specifically address the changes in the third revised ETS. As such, California employers are encouraged to monitor Cal / OSHA website for further updates, including any updated COVID-19 prevention model. As with previous re-elections, California employers should consult with legal entities advicewhile implementing updates to their COVID-19 practices, and assessing potential overlap with applicable local ordinances or other legal compliance obligations.

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