On December 16, 2021, California’s Occupational Safety and Health Standards Board (the “Standards Board”) adopted its second set of proposed revisions to the Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (the “2nd Revised ETS”).¹  The 2nd Revised ETS will take effect on January 14, 2022.  Until then, the current ETS, which was adopted on June 17, 2021, remains in effect (the “June 2021 ETS”).  In addition, shortly after the Standards Board meeting, Governor Newsom issued a surprise executive order waiving usual regulatory limits to clear the way for a potential third readoption that could run through December 2022.  

California employers should prepare to comply with the provisions of the 2nd Revised ETS.  They should also stay on top of ongoing developments, after the governor’s order altered the future scheduling that had previously been anticipated.

Key Takeaways of the 2nd Revised ETS

• Providing Post-Close Contact or Exposed Group Testing to All Employees, Regardless of Vaccination Status: Cal/OSHA previously exempted fully vaccinated employees who were not experiencing COVID-19 symptoms from its close contact/exposed group testing requirements.  The 2nd Revised ETS will require that employers provide testing to fully vaccinated employees in a close contact/exposed group regardless of symptom status. The testing requirements otherwise remain unchanged.

• Adding Physical Distancing to Close Contact Exposure Requirements for Vaccinated Employees:  The June 2021 ETS did not require that employers exclude employees with a close contact exposure from the workplace if they were fully vaccinated and symptom-free.  The 2nd Revised ETS continues to exempt fully vaccinated and symptom-free employees from being excluded from the workplace, but will require that they wear a face covering and maintain physical distancing from all others at the workplace for 14 days following the last date of close contact.  Similarly, employees that have returned to work after having COVID-19 and have remained symptom-free must also wear face coverings and be six feet apart for 14 days after a close contact exposure.

• Adopting Testing Protocols from the Federal Occupational Safety and Health Administration’s Emergency Temporary Standard (“Fed ETS”):  The June 2021 ETS provided little guidance on administration of testing.  The 2nd Revised ETS adopted language from the currently-enjoined Fed ETS, which allows tests with specimens processed by a laboratory, proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is done or observed by an employer.  The 2nd Revised ETS now clarifies that tests may not be self-administered and self-read unless the employer observes or authorizes a telehealth proctor. 

• Face Coverings Must Pass the Light Test:  Under the 2nd Revised ETS, face coverings will need to pass the “light test,” which means that light does not pass through the mask when held up to a light source.²  The 2nd Revised ETS also defines a face covering as a solid piece of material without slits, visible holes or punctures, which must fit snugly over the nose, mouth and chin with no large gaps on the outside of the face.  The 2nd Revised ETS includes language on how to accommodate employees with disabilities that affect their ability to wear face coverings, including ensuring employees are at least six feet apart from all other persons if their condition or disability does not permit a face covering alternative and that they either be fully vaccinated or subject to weekly testing at no cost to the employee.

• Tightening of Return to Work Criteria.  The 2nd Revised ETS imposes additional return to work requirements for close contact exposures.  The June 2021 ETS allowed employees who never developed COVID-19 symptoms to return to work after 10 days following a close contact exposure.  Under the 2nd Revised ETS, those employees are to be excluded for 14 days, subject to two exceptions.  First, an employee can return to work 10 days after the last known contact if they wear a face covering and maintain social distancing at work for 14 days following last known close contact, i.e., for four days after their return. Second, an employee can return to work after seven days since the last known contact, if the employee tested negative for COVID-19 from a specimen taken at least five days after the last known contact, and the employee wears a face covering and maintains social distancing for 14 days following the last known contact, i.e., for seven days after their return. Employees with close contact exposure who experience COVID-19 symptoms should be treated as COVID-19 cases with respect to return to work. 

Discussion of Multiple Future Regulatory Options Continues

The meeting utilized a novel panel discussion format to permit a more free-flowing opportunity for stakeholder representatives to engage on broad questions concerning how Cal/OSHA might best and most reasonably pursue its objective to protect workplace safety in any future regulatory changes related to COVID-19.  The discussion was a direct result of the compromise reached at the November 18 meeting to consider various alternatives to the ETS regulatory approach, as the agency continues to pursue a Permanent Infectious Disease Standard. 

As described by many employers and industry organizations during the December 16 meeting, employers are accustomed to the standards enforcement that has taken place throughout the pandemic. Moreover, employers appear to be as willing to comply with appropriate COVID-19 safety measures under the Injury and Illness Prevention Regulation (which existed pre-pandemic) as they are under COVID-19 emergency regulations.  Cal/OSHA also indicated it remained focused on seeking to develop a separate permanent standard no later than mid-March  2022, in order for such a standard to be approved and become effective in mid-April 2022, when the 2nd Revised ETS is presently scheduled to expire.

Governor Issues Order Paving Way for a Third Readoption

The expiration of the 2nd Revised ETS in mid-April 2022 is not, however, a sure thing.  After the conclusion of the Standards Board meeting, Governor Newsom took the unexpected step of issuing an executive order (N-23-21), immediately waiving the limitations on the frequency and duration of Emergency Temporary Standards by Cal/OSHA, to permit a third readoption of a COVID-19 standard “so long as the effective period of the third readoption does not extend beyond December 31, 2022.”  Prior to this action, the second readoption that the Board approved during the meeting on December 16 was anticipated to expire in mid-April 2022, with no further opportunities for further readoption under the limits normally applicable to an ETS.  How this action will affect continuing discussions about a Permanent Infectious Disease Standard and/or alternatives to the ETS regulatory structure are new questions that sprung from the December 16 meeting and will be addressed in the new year.

What Next?

Since the adoption of the ETS, Cal/OSHA has prioritized enforcement of COVID-19 inspections and investigations, issuing hundreds of COVID-19 citations to employers throughout California, some of which carry significant six-figure penalties.  In light of yesterday’s meeting, it is clear that Cal/OSHA will continue to maintain its vigorous enforcement strategy through the 2nd Revised ETS. 

Employers should audit their current policies to ensure compliance with the requirements of the 2nd Revised ETS when it becomes effective a month from now.  They also should consider how a permanent standard may affect their operations in the years to come and remain attentive to ongoing developments in this area.  Employers are strongly encouraged to consult with counsel specializing in occupational safety and health issues and address any concerns about permanent standards adopted by Cal/OSHA.   

Littler’s Workplace Policy Institute will continue to keep employers apprised of developments in this rapid-evolving legal landscape.