Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On April 6, 2022, Cal/OSHA issued a draft COVID-19 Emergency Temporary Standard (ETS) for readoption to replace the current version, which expires on May 5, 2022. The readopted ETS would be the fourth version of the ETS, which first went into effect on November 30, 2020.1 The California Occupational and Health Standards Board (Standards Board) is scheduled to hear public comment and to vote on whether to approve the readopted ETS on April 21, 2022. If approved, and if left unmodified by executive order, the proposed ETS would be in effect through December 31, 2022.
Key Takeaways
Vaccination Status No Longer Matters. In a stunning reversal, employee vaccination status is no longer a functional part of the proposed ETS. The definition of “fully vaccinated” has been removed from the ETS and the ETS applies to employees without regard to vaccination status. Any employee is now entitled to request a respirator for voluntary use and an employer must offer COVID-19 testing to any employee exhibiting symptoms of COVID-19. At the same time, close contact provisions no longer depend on vaccination status under the new draft ETS text—but this leads to the next key takeaway.
No Set Rules for Close Contact Exclusion. In what is sure to be a controversial move, the proposed ETS has no set rules for close contact exclusion from the workplace. Instead, the proposed ETS now requires that employers “review current [California Department of Public Health] guidance” regarding “quarantine or other measures to reduce transmission,” to “develop, implement, and maintain effective policies” to prevent COVID-19 transmission from close contacts. Even the definition of “close contact” is now subject to change by CDPH “regulation or order.” Although many employers will be relieved by the apparent flexibility, the vagueness of the new rule will certainly cause issues with enforcement and potentially place too much discretion with Cal/OSHA inspectors to determine what is effective. Further, because the draft retains the requirement to provide exclusion pay when workers are excluded from the workplace, ambiguity in this area may be particularly problematic. Finally, in high-risk settings, because CDPH’s current return-to-work guidance still relies on vaccination status, if employers intend to return employees who are exposed to COVID-19 in the workplace prior to a full 10-day quarantine period, collection of proof2 of vaccination and boosters is necessary.
Specific Rules for COVID-19 Cases. In contrast to the lack of specific close-contact rules, the rules with respect to COVID-19 case exclusion and return are not left to conjecture. The proposed ETS codifies the substance of the exclusion requirements set forth in the current Cal/OSHA ETS FAQs with minor adjustments—for example, the proposed language now clearly states under what circumstances to count exclusion periods from symptom onset versus test date.
Types of Acceptable COVID-19 Tests Broadened. Except for purposes of return to work, the proposed ETS no longer restricts the types of COVID-19 tests that can be used to identify COVID-19 cases or otherwise be made available to employees when required, including during outbreaks. The restriction prohibiting use of self-administered and self-read tests applies only to return-to-work criteria unless “another means of independent verification can be provided,” such as a time-stamped photograph of the test results presumably taken by the employee.
Contaminated Surfaces no Longer a Hazard. Surfaces and objects potentially contaminated with SARS-CoV-2 are no longer included within the definition of “COVID-19 Hazard.” The proposed ETS removes all cleaning and disinfection requirements, including the requirement to clean an area used by a COVID-19 case.
No More Light Test. The requirement that face coverings not allow light to pass through has been removed.
No More Partitions. The minor and major outbreak provisions of the proposed ETS no longer require consideration or use of cleanable solid partitions whenever social distancing cannot be maintained.
What Next?
The publication of new draft text for a potential third readoption of the CA ETS does not displace employer obligations to adhere to the currently applicable CA ETS standards.
The timing of the release of this draft might be interpreted as Cal/OSHA’s response to extraordinary pressure in recent weeks to publish a draft sooner than the five-day minimum advance notice required before the Standards Board’s April 21, 2022 meeting and vote so that actual comment might be received and potential adjustments could be made in a further revised draft. Still, it is a compressed time frame and no adjustments might be made. But at least on this occasion—unlike prior readoptions of the CA ETS, which were published in initial draft form five days before the required vote with no opportunity for adjustment—there is a chance that some aspect of a final text might be modified before a vote is forced by procedural requirements. That said, the governor could issue an executive order to extend Cal/OSHA’s deadlines yet again, as has occurred repeatedly.
Littler will continue to monitor this active area. Employers should consult with their employment counsel regarding ongoing developments and how they may affect any possible changes to their own workplace safety plans.
See Footnotes
1 The Cal/OSHA Standards Board initially adopted a COVID-19 ETS on November 30, 2020. That ETS was amended and readopted for a first time on June 17, 2021. We refer to the Board’s December 16, 2021 further amendment and approval as the second readoption (the 2nd Revised ETS). Accordingly, we refer to the new revised ETS as the “3rd Revised ETS” or third readoption.
2 Like all previous versions of the ETS, the new draft is silent on what documentation of vaccination status will suffice. However, Cal/OSHA has consistently taken the position in published FAQs that employee self-attestations will suffice. There is nothing in the new draft to suggest that Cal/OSHA would now radically alter this long-standing enforcement position.
