On December 16, 2022, California’s Division of Occupational Safety & Health (Cal/OSHA) approved revised and more restrictive COVID-19 Emergency Temporary Standards (ETS). The revised standards will go into effect January 14, 2022 and if not extended or made permanent, expire April 14, 2022.

Cal/OSHA promised updated FAQs to provide further guidance and clarification. Below is a summary of some key changes. Employers are still required to create and maintain a compliant COVID-19 Prevention Plan and are encouraged to review the regulations in full.

The updated ETS revise the definition of an approved “COVID-19 test.” When an employee is tested for the virus, they cannot use a test that is both “self-administered and self-read unless observed by the employer or an authorized telehealth proctor.” Therefore, an employee cannot simply buy an over- the-counter rapid test which the employee administers by themselves at home.

Cal/OSHA noted that tests which satisfy the new requirements include tests where the specimens are processed by a lab, proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by the employer.

The revised ETS also expand the type of face coverings that are permissible and those that are not. Generally, the ETS define face covering “as 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.”

In giving an example of proper face coverings, the ETS state they must not “let light pass through when held up to a light source.” They must also completely cover the nose and mouth and be secured to the head “with ties, ear loops, or elastic bands that go behind the head.” The ETS go on to state that if “gaiters are worn, they shall have two layers of fabric or be folded to make two layers.” Employers must ensure there are no slits, visible holes, or punctures, and that face coverings fit correctly.   

During public comment on the proposed revisions, this particular modification was met with strong public criticism who argued this would further burden employers and employees, who already purchased large quantities of what they believed to be valid face coverings. Further, they have not yet clarified how employers should test masks to ensure that light does not “pass through when held up to a light source.”

If employees cannot wear face coverings due to a disability, and their condition or disability also does not permit a non-restrictive alternative, employees must remain at least six feet apart from others and either get fully vaccinated or tested weekly at the employer’s expense.

Cal/OSHA’s ETS generally require employers to exclude employees who had “close contact” (as defined) with an infected individual. A previous version of the regulations created an exemption for asymptotic, fully-vaccinated employees.

The revised regulations now state, however, that asymptomatic, fully-vaccinated employees, do not need to be excluded if they wear a face covering and maintain six feet of distance from others at the workplace for 14 days following the last date of close contact.

Asymptotic, unvaccinated employees who had close contact must be excluded for at least seven days (provided they get tested at least five days after the contact and the result is negative). When they return, they must wear a face covering and maintain six feet of distance from others while at the workplace for 14 days following the last date of close contact.

Employees who do not meet these requirements must be excluded for at least 14 days. As a reminder, the Cal/OSHA ETS require exclusion pay for employees who cannot work or telework following workplace exposure.

Arguably, if an employee refuses to wear a mask (despite County and State guidance) or cannot maintain six feet of distance, the employee would have to be excluded for 14 days and may be entitled to exclusion pay.

In response to this revision, several members of the public voiced concern about employees who may purposefully generate an exclusion pay obligation by refusing to wear a mask. Others noted the social distancing requirement may not be feasible for many small businesses or for movie/TV productions, which would further disrupt the employment market.

Hopefully, the revised FAQs will provide much needed clarification.

For purposes of providing notice when there is COVID-19 in the workplace, the ETS now modifies the definition of “Worksite.” The ETS carves out “buildings, floors, or other locations of the employer that a COVID-19 case did not enter, 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.”

Generally, the Cal/OSHA ETS require employers to provide COVID-19 testing at no cost, during paid time, to all employees who had close contact at work. The previous version excluded asymptotic, fully-vaccinated employees. The revised version removed this exclusion, and requires free testing, on paid time, for all employees who had close contact in the workplace. The limited testing exception for those who recently recovered from COVID-19 remains.

According to the New York Times‘ statistics on Coronavirus in the United States, California is seeing rising infection rates over the last fourteen days in the double- and even triple-digits. Now more than ever, it’s important for employers to buckle down to keep abreast of changing COVID-19 regulations. Consult employment defense counsel if you need help staying in compliance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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