Revised Cal/OSHA COVID-19 Emergency Temporary Standard Adding New Compliance Obligations for Employers Goes Into Effect January 14

The Cal/OSHA Standards Board has revised and readopted Cal/OSHA's COVID-19 Prevention Emergency Temporary Standards (ETS). This readopted ETS maintains much of the prior Cal/OSHA ETS requirements.

Although the readopted ETS did not add a vaccine mandate, it adds several significant revisions that increase obligations and burdens for California employers. The full language of the newest version of Cal/OSHA's ETS is available here.

Further adding to the complexity, Cal/OSHA has confirmed that timeframes for exposed or sick employees to quarantine or isolate are governed by guidance from the California Department of Public Health (CDPH), even where those recommendations are different from what is explicitly written in the Cal/OSHA regulations. And the CDPH has, in fact, issued new recommendations, which permit reduced isolation and quarantine periods in the revised Cal/OSHA ETS when it becomes effective.

The result is that employers will need to address a number of changes involving multiple sources to remain compliant with California COVID-19 regulatory requirements in the workplace.

What Is the Revised Cal/OSHA ETS's Effective Period?

The revised Cal/OSHA ETS goes into effect on January 14, 2022, and will expire on April 14, 2022. Under California law, a Cal/OSHA ETS can only be readopted twice, meaning that this twice-readopted emergency regulation should not be further extendable beyond April 14 (absent the Cal/OSHA Standards Board adopting a permanent regulation).

However, on December 16, 2021, Governor Newsom issued an executive order permitting the ETS to be extended through the end of 2022. It is possible that the Cal/OSHA Standards Board will rely upon this executive order and attempt to extend the revised ETS rather than to issue a permanent rule.

How Does the Revised Cal/OSHA ETS Relate to the Federal OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard?

California is a state-plan state. This means that along with approximately 20 other jurisdictions in the United States, California is approved by OSHA to administer its own independent state workplace safety and health program. Private employers in California are covered by California's plan, called Cal/OSHA, rather than the federal OSHA regulations.

While California must adopt standards that are at least as effective as federal OSHA standards (including emergency temporary standards), Cal/OSHA is permitted to enact its own versions of standards and can make those standards more protective for workers than federal OSHA rules are. This context is important when considering federal OSHA's Vaccine-or-Test ETS currently pending before the U.S. Supreme Court.

The existence of both a California and federal ETS related to COVID-19 has understandably caused some confusion among California employers. But California employers should understand that a U.S. Supreme Court decision staying the federal OSHA ETS will not stay Cal/OSHA's ETS enforceability because the Cal/OSHA ETS was passed and exists independently from the federal OSHA ETS. Cal/OSHA's ETS is not on review—it remains in effect and enforceable.

Should federal OSHA's Vaccine-or-Test ETS become enforceable, it is unclear whether OSHA would accept the current version of the Cal/OSHA ETS as being as protective as the federal OSHA ETS, or if the Cal/OSHA Standards Board will be required to revise the Cal/OSHA ETS yet again (or even adopt a new ETS altogether) to include, for example, a vaccine mandate.

What Are Key Changes to the Revised Cal/OSHA ETS?

Below are some of the key changes in the revised Cal/OSHA ETS. This is not an all-inclusive list of all changes, and employers should review the full text of the revised regulation and ensure their written COVID-19 Prevention Programs are up to date and their employees trained as appropriate to comply with current Cal/OSHA ETS obligations.

1. The Distinction Between Fully Vaccinated and Unvaccinated Employees Is Eliminated for Certain Requirements

• COVID-19 Testing for Close Contacts: Employers will need to provide COVID-19 tests at no cost to all employees regardless of their vaccination status if they are identified as a close contact with a COVID-19 positive case in the workplace.
  
• Outbreak Testing for an "Exposed Group" of Employees: Employers must offer COVID-19 testing to all employees, including fully vaccinated employees, who are part of an "exposed group" (as defined by the Cal/OSHA ETS) during a COVID-19 outbreak.
  
• Employer-Provided Information Regarding COVID-19-Related Benefits: Employers need to provide all employees identified as a "close contact" (as defined by the Cal/OSHA ETS) in the workplace with information about COVID-19-related benefits to which the employee may be entitled, including Cal/OSHA's controversial exclusionary pay benefits.
  
• Face Coverings: All employees will need to wear a face covering during all health screenings conducted indoors.

2. Updated Definitions

• Face Coverings: Cloth face coverings must now pass a "light test"—meaning a cloth face covering meets the Cal/OSHA ETS's definition only if light does not pass through when the covering is held up to a light. This test creates a risk for employers as cloth face coverings worn by employees throughout the course of the pandemic might not pass this test.
  
• COVID-19 Testing: Self-administered and self-read tests are permitted but only if the employer or an authorized telehealth proctor observes the test. An employee who administers and reads a take-home test on his or her own will not have taken a valid test for purposes of complying with the revised Cal/OSHA ETS.
  
• Fully Vaccinated: Employees can now combine different COVID-19 vaccines to become fully vaccinated, such as receiving one dose each of the Pfizer-BioNTech and the Moderna vaccines. When employees combine different doses, the second dose needs to be received no earlier than 17 days after the first dose. Additionally, the revised Cal/OSHA ETS now permits trial vaccines, subject to certain additional requirements, such as the recipient must have received the active vaccine candidate and not the placebo.
  

3. Notification of Employees and Third Parties of Positive COVID-19 Cases in the Worksite

The revised Cal/OSHA ETS clarifies common-sense applications of the scope of the "worksite," which help eliminate nonsensical requirements of COVID-19 exposure in the workplace. Worksites now specifically exclude locations where an employee worked by themselves and was not exposed to others, an employee's home, and any location chosen by an employee who is working remotely.

4. Cal/OSHA Has Indicated It Will Follow the California Department of Public Health's Exclusion Recommendations to the Extent they Conflict with the Revised Cal/OSHA ETS

The isolation and quarantine periods (also called "exclusion periods") in the Cal/OSHA ETS have been replaced by the CDPH's updated recommendations. In December 2020, Governor Newsom issued Executive Order N-84-20, capping the maximum exclusion periods under the then-existing Cal/OSHA ETS at no longer than the periods recommended by the CDPH or applicable local health authority.

The CDPH recently issued new isolation and quarantine recommendations, identifying shorter exclusion periods than those in the ETS. On January 6, 2022, Cal/OSHA updated its Frequently Asked Questions, indicating the CDPH's recommended exclusion periods replace those written in the second readopted ETS.¹

• Isolation v. Quarantine: For purposes of the Cal/OSHA ETS and CDPH guidance, isolation refers to periods of restricted in-person contact for COVID-19 cases. Quarantine refers to periods of restricted in-person contact for those who have close contact with a COVID-19 case but are not a COVID-19 case themselves.
  
• Isolation Periods for Positive COVID-19 Cases: Based upon the CDPH's recommendations, there are two isolation periods for California employees testing positive for COVID-19. The isolation requirements apply regardless of employee vaccination status, history of prior infection, or existence of symptoms. Both isolation periods also prohibit any employee from returning to the workplace if they have a fever. Employees are also required to wear face coverings for 10 days following their first positive test.
  
  • Five-Day Isolation: An employee can return to the workplace after at least five days if:
    
    • The employee is no longer symptomatic or their symptoms are resolving; and
    • The employee tests negative using a specimen collected on day five or later.
  • Ten-Day Isolation: An employee can return to the workplace after at least 10 days if:
    
    • The employee's symptoms are resolving; or
    • Ten days have passed since the employee's first positive test.
• Quarantine Periods for Close Contacts: The CDPH's recommendations (and thus Cal/OSHA's requirements) regarding quarantine periods include a previously unseen nuance: distinctions between "fully vaccinated" individuals based upon whether they are eligible for and have received a booster shot.
  
  Cal/OSHA confirmed through its FAQs that this distinction applies to the quarantine periods taking effect beginning January 14, 2022. An employee's eligibility to receive a booster under the CDPH framework is based upon the CDC's COVID-19 Booster Shot guidance. Additionally, all employees identified as a close contact, regardless of their vaccination status, must wear face coverings for 10 days following their exposure and follow the isolation requirements above if they test positive for COVID-19.
  
  • Unvaccinated and Booster Eligible Employees: Unvaccinated employees, employees who are fully vaccinated and eligible to but have not received a booster, and fully vaccinated and boosted employees who have COVID-19 symptoms are subject to two quarantine periods.
    
    • Five-Day Quarantine: A close contact may return to the workplace after five days if the employee tests negative using a specimen collected on day five or later.
    • Ten-Day Quarantine: A close contact may return to the workplace after 10 days without testing.
  • Fully Vaccinated and Boosted or Not Yet Booster-Eligible Employees: There is no quarantine requirement for asymptomatic, fully vaccinated employees who have received a booster or are not yet eligible to receive a booster as long as the employee takes a COVID-19 test on the fifth day and receives a negative result.

What Should Employers Do Now?

Employers' compliance obligations in California have never been more complicated. Employers need to comply with current requirements under the Cal/OSHA ETS, the CDPH, and Governor Newsom's Executive Orders (to say nothing of county and local orders). In addition, if the federal OSHA ETS is not stayed, the Cal/OSHA Standards Board might be forced to adopt yet another Cal/OSHA ETS related to COVID-19, or it may work to adopt a permanent rule, or it may let the status quo continue.

Employers must remain aware of continuing new developments, and consultation with experienced OSHA counsel is recommended. DWT'S OSHA team is available to advise and assist with complying with this constantly evolving and complex legal area.

FOOTNOTE

1 The CDPH's recommendations also limit the exclusion periods under the current Cal/OSHA ETS, except for the quarantining requirements for asymptomatic "fully vaccinated" employees identified as a close contact with a positive COVID-19 case. This exemption goes away when the second readopted ETS takes effect on January 14.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.