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April 2022: Third COVID-19 Emergency Rule Containing New Changes to Go into Effect Soon

25 Apr


Update Applicable to:
All employers in the state of California.

What happened?
On April 21, 2022, California’s Division of Occupational Safety and Health (Cal/OSHA or the Division) Standards Board met and formally approved the third re-adoption of its COVID-19 Emergency Temporary Standard (ETS), along with several changes to the ETS.

What are the details?
Effective May 6, 2022, the California ETS will go into effect for the third time and will expire on December 31, 2022.

Although the new ETS contains multiple significant changes, the obligation to pay “exclusion pay” to employees who have been excluded from the workplace as a COVID-19 case or a close contact has not changed.

Key Definitional Changes Will Lead to Changed Practices
Some of the key definitions of terms used throughout the ETS have been altered in such a way employers may need to change some of their practices.

  1. COVID-19 Test: The definition of “COVID-19 test” has been amended to provide that, to meet the return-to-work criteria, a test may be both self-administered and self-read only if another means of independent verification of the results can be provided (such as a time-stamped photograph of the results).
  2. Face Coverings: The definition of “face coverings” has been amended to remove the requirement that light does not pass through the mask when it is held up to a light source.
  3. Fully Vaccinated: The definition of “fully vaccinated” has been removed. This is largely in response to the fact that the face-covering provisions of the ETS no longer make a distinction between fully vaccinated employees and unvaccinated employees. However, employers should keep in mind that vaccination status may still be relevant for other purposes, including under local public health orders.
  4. Returned Case: The new language contains a new defined term of “returned case” to largely describe employees who previously had COVID-19 and now have natural immunity. “Returned case” is defined to mean a COVID-19 case who returned to work and did not develop any COVID-19 symptoms after returning. A person shall only be considered a “returned case” for 90 days after the initial onset of symptoms or the first positive test (if no symptoms developed). If a period of longer than 90 days is recovered by the California Department of Public Health (CDPH), that period shall apply.

More Testing of Symptomatic Employees
Under the current ETS, employers only need to make testing available to those employees with COVID-19 symptoms who are not fully vaccinated. The new language eliminates this limitation, meaning that employers will have to offer testing to all employees with COVID-19 symptoms regardless of vaccination status.

Respirators Must Be Offered to All Workers
The current ETS requires employers to provide respirators for voluntary use to all unvaccinated employees upon request. The new language eliminates the linkage to unvaccinated employees. Therefore, employers will be required to provide respirators upon request to all employees, regardless of vaccination status.

Face Coverings No Longer Mandatory for Unvaccinated Workers
The new language conforms the ETS to recent developments regarding face coverings. After CDPH changed its face-covering guidance to no longer require masks indoors regardless of vaccination status, Governor Newsom issued an Executive Order striking the ETS language that required employers to provide and ensure face coverings were worn by unvaccinated employees. The new amended ETS language reflects these changes.

Employers should keep in mind that other face-covering provisions of the ETS remain in effect. This includes language that allows employees to voluntarily wear face coverings unless it would create a safety hazard.

The new language also removes the requirement that employees who are exempted from any applicable face-covering requirement (such as returning to work following a COVID-19 case or close contact) maintain six feet of social distance from others or be tested weekly. Now the language will merely require such employees to be tested at least once a week.

Cleaning and Disinfection Rules Eliminated
The current ETS requires employers to implement specified cleaning and disinfection procedures, including regularly cleaning frequently touched surfaces and objects. The new language eliminates these requirements in its entirety.

Exclusion and Return-to-Work Criteria Streamlined
The new language generally eliminates any specific language in the ETS regarding “close contacts” and instead cross-references CDPH guidance, simply requiring employers to review current guidance and develop policies to prevent transmission by close contacts. It also removes specific return-to-work criteria for close contacts, meaning employers will simply follow the current CDPH and/or local quarantine guidance.

The new changes remove the current language in the ETS and instead provide the following (which generally conform to current CDPH guidance):

  1. COVID-19 cases, regardless of vaccination status or previous infection, who do not develop symptoms or whose symptoms are resolving, shall not return to work until (1) at least five days have passed, (2) at least 24 hours have passed without fever, and (3) a negative test is obtained on the fifth day or later (10 days if the employee is unable or chooses not to test).
  2. COVID-19 cases, regardless of vaccination status of previous infection, whose symptoms are not resolving may not return to work until (1) at least 24 hours have passed without fever and (2) symptoms are resolving, or 10 days have passed since symptoms began.
  3. Regardless of vaccination status, previous infection, or lack of symptoms, a COVID-19 case shall wear a face-covering in the workplace until 10 days have passed since symptoms began or the date of their first positive test.

New Obligations If COVID-19 Outbreaks Occur
The new changes to the ETS section on multiple COVID-19 infections and outbreaks generally make conforming changes to reflect the amendments to the ETS described above. However, the new language also makes the following changes:

  1. During an outbreak, employees who had close contact shall have a negative COVID-19 test taken within three and five days after the close contact or shall be excluded and follow the return-to-work criteria of the ETS.
  2. During an outbreak, an employer shall evaluate whether to implement social distancing. Where six feet of social distancing is not feasible, the employer shall evaluate implementing as much distance as possible between persons (as opposed to the current language which requires consideration of the use of cleanable solid partitions).

Testing Required After Major Outbreaks
The changes to the ETS “major outbreak” requirement generally conform to the changes noted above.

There is also one notable change, however. Under the current ETS language, an employer must make COVID-19 testing available to all employees in the exposed group at least twice a week during a major outbreak. The new language clarifies that employers are required to do so in such situations. Employees in the exposed group shall now be tested or shall be excluded and follow the return-to-work requirements of the ETS.

Employer-Provided Housing and Transportation Obligations Eliminated
The new language eliminates the requirement of employers to ensure that employer-provided housing is cleaned and disinfected to prevent the spread of COVID-19. The language also eliminates an exemption for exclusion requirements following close contact for employees that previously had COVID-19 in the prior 90 days.

Similarly, the new language eliminates cleaning and disinfection requirements and, in lieu of face-covering requirements, requires employers to review CDPH and local health department recommendations and implement face-covering policies that effectively eliminate or minimize transmission in vehicles.

Testing After Exposure Slightly Changed
Under the current ETS, an employer is generally required to make testing available to all employees who had close contact with a COVID-19 case in the workplace with an exception for employees that previously had COVID-19 within the last 90 days. The new language replaces this exception language with the new term “returned cases” as described above. 

Other ETS Requirements Remain in Effect
Employers should keep in mind that, other than the changes discussed above, the rest of the ETS will remain in effect as well. This includes notification requirements following a COVID-19 case in the workplace and the obligation to maintain a written COVID-19 Prevention Program.

For more information, please see the links below:

Executive Order N-5-22

Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public

Article 1Article 2

What do employers need to do?
Employers should carefully review the links provided above, as well as these changes to make necessary operational changes to their written COVID-19 Prevention Program and other pandemic workplace policies to comply with the ETS by May 6, 2022.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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