On April 21, 2022, the California Occupational Safety and Health Standards Board approved the third readoption of the Emergency Temporary Standards (the Standard). The current Emergency Temporary Standards (ETS), which took effect January 14, 2022, is set to expire May 6, 2022. The newly approved Standard will likely take effect May 6 and will likely be in effect until the end of this calendar year. Although many features of the prior version remain intact, the Standard includes several notable changes that may require employers to update their policies and practices, including the written COVID-19 Prevention Program. We note a number of these differences below. As with prior versions, Cal/OSHA will likely update their Frequently Asked Questions to address the changes.
- Fully Vaccinated. The Standard deletes the definition of “fully vaccinated” and does not replace it with a new one. Thus, unlike the current ETS, the Standard now requires employers to make COVID-19 testing available to employees with COVID-19 symptoms regardless of vaccination status.
- Self-Administered and Self-Read COVID-19 Tests. Under the Standard, an employee may satisfy return-to-work criteria by taking a COVID-19 test that is both self-administered and self-read “only if” another mechanism for independent verification of the results is available such as a time stamped photograph of the results.
- Face Coverings. Importantly, the Standard removes the requirement that employers must provide face coverings to those who are not fully vaccinated and ensure face coverings are worn indoors or in vehicles. However, employers must provide face coverings and ensure they are worn when the California Department of Health (CDPH) requires. The Standard also removes from the definition of “face coverings” the requirement that light cannot pass through them when held up to a light source.
- Return-to-Work Criteria. The Standard sets forth revised return-to-work criteria. Under the Standard, regardless of vaccination status or previous infection, employees who do not develop COVID-19 symptoms or whose symptoms are resolving should not return to work until:
- Five days have passed since COVID-19 symptom onset, or if there were no symptoms, the date of the first positive test;
- 24 hours have passed since the last fever of 100.4 degrees or higher without using fever-reducing medication; and
- A negative COVID-19 test collected on the fifth day or later is obtained (or if an employee cannot test or the employer does not require a test, 10 days have passed from the date of symptom onset, or if no symptoms develop, the date of the first positive COVID-19 test).
If symptoms are not resolving, an employee cannot return to work (regardless of vaccination status or prior infection), unless 24 hours have passed since the last 100.4-degree fever or higher (without use of medication) and symptoms are resolving, or 10 days have passed since the symptoms began.
Regardless of vaccination status, previous infection, or lack of COVID-19 symptoms, employees who have recently tested positive for COVID-19 or been ordered to isolate should wear a face covering in the workplace until 10 days have passed since the date COVID-19 symptoms commenced, or the date of the first positive COVID-19 test if the person never experienced symptoms.
- Returned Case. Employees who return to work after a COVID-19 case and do not develop further symptoms do not need to be provided with COVID-19 tests for 90 days.
Given the references and referrals to CDPH, employers should continually monitor CDPH guidance to comply with the Standard. Employers also need to monitor local public health guidance, which may be more stringent than CDPH. Due to these continuous developments, employers should consult experienced counsel to ensure compliance with the Standard and ongoing developments regarding COVID-19.