The California Occupational Safety and Health Standards Board (Board) readopted a revised version of its earlier Emergency Temporary Standards (Standard) for employers on preventing the spread of COVID-19 in the workplace on December 16, 2021. The revised Standard was readopted by a 6-1 vote in the form proposed by the California Division of Occupational Safety and Health (Division) and will take effect on January 14, 2022, for a period of 90 days.
The revised Standard has been changed in a few significant ways, and it eliminates many of the current distinctions between vaccinated and unvaccinated workers. The highlights of the changes to the Standard are set out below.
Return to work. The revisions require fully vaccinated workers who come in close contact with another worker testing positive for COVID-19 to wear a mask and maintain six feet of social distance from coworkers for a period of 14 days from the time of contact. This is more stringent than the existing rule, which allows fully vaccinated workers with a close contact to continue working without restriction. As under the current Standard, employees with a close contact who do not develop symptoms may return to work 10 days after the contact.
Testing. Employers will be required to provide free testing to all employees regardless of vaccination status if the employee comes in close contact with a worker who tested positive for COVID-19. In addition, COVID-19 tests may not be “self-administered and self-read” unless observed by an employer or authorized telehealth proctor. Home or on-site collected specimens that are processed by a lab, proctored over-the-counter tests (including employer-observed tests), and point of care tests all satisfy the new testing standard.
Masking. The revised Standard adds a requirement that cloth masks prevent the passage of light to be suitable. It also permits double-layered gaiters. Surgical masks and N95 masks remain appropriate. Although the Standard continues the requirement for unvaccinated employees to wear masks in the workplace on the basis of self-attestation as to vaccination status, Cal/OSHA clarified in a separate FAQ that the CDPH Guidance issued Monday, which requires all persons to mask in indoor public places regardless of vaccination status, will apply.
Other changes include an expansion of employers’ written notice requirements in the event of a workplace exposure, as well as an increase in the standards and requirements for employers providing employee housing. The Division is currently working on a proposed permanent COVID-19 standard that would be effective for two years. It is anticipated that the Board will consider the proposed permanent standard during its March 2022 meeting.
The December 16 changes are part of a larger regulatory framework involving rules and guidance from multiple local, state, and federal agencies. Employers should consult experienced counsel to ensure compliance with the Standard and ongoing COVID-19 law and policy developments.