The NeverEnding Story – Cal/OSHA Readopts COVID-19 Emergency Temporary Standard for a Third Time, With Significant Revisions

The Cal/OSHA Standards Board has revised and readopted Cal/OSHA's COVID-19 Prevention Emergency Temporary Standards (ETS), which are now in effect and will remain so until December 31, 2022. This Revised ETS contains significant changes for employers to be aware of, loosening some requirements while adding new, burdensome obligations with regard to testing in outbreak situations. Employers should update their policies, including their required COVID-19 Prevention Programs, to ensure they reflect these changes.

Employers Are Now Required to Test Employees in Certain Outbreak Situations

The Revised ETS imposes new obligations on employers in outbreak situations to test or exclude workers. Per the regulation, a COVID-19 "outbreak" occurs if there are 3 or more onsite employee COVID-19 cases within an exposed group¹ during a 14-day period. A "major outbreak" occurs if there are 20 or more onsite employee COVID-19 cases within an exposed group during a 30-day period.

In outbreak situations, employers still must make testing available, but the Revised ETS now requires that exposed group employees who had a close contact with a COVID case must obtain a negative test result taken within 3 and 5 days after the close contact, regardless of vaccination or prior infection status (i.e. they must produce a negative test, even if they just recovered from COVID and returned in compliance with the Revised ETS's isolation obligations). Employees who fail to do so must be excluded from the workplace and comply with the Revised ETS's isolation requirements before they can return to work.

In major outbreak situations, employers are now "required" to test employees in the exposed group, regardless of vaccination or prior infection status, and regardless of whether they had a close contact with a COVID case. In addition, employees who cannot or will not test must now be excluded from the workplace and comply with the Revised ETS's isolation requirements before they can return to work. However, because the major outbreak testing requirement does not turn on whether an employee had close contact with a COVID case, it is unclear whether an employee who does not test, completes the Revised ETS isolation requirements, and then returns to work will again be required to test or be excluded a second time, as the minimum period for major outbreak status is 14 days but the likely isolation period for an employee who does not test is 10 days. Moreover, if the worksite remains in major outbreak status for longer than 14 days – a strong possibility in the event of a new wave of cases in a given community – it may be that an employee who does not test will need to be excluded continuously until the employee either tests twice a week or the worksite's major outbreak status ends. The language of the Revised ETS and FAQs do not clearly address this situation, but there is a strong possibility that Cal/OSHA may take the position that an employee who cannot or will not test must be excluded for the duration of the worksite's major outbreak status.

The Revised ETS Defers to the California Department of Public Health (CDPH) Guidance Regarding Quarantine and Other Requirements

The Revised ETS eliminates specific requirements for quarantine by employees identified as close contacts, instead directing employers to review CDPH's guidance for close contacts and quarantine and develop, implement, and maintain effective quarantine policies. In other words, employers should monitor CDPH and update their quarantine requirements to ensure compliance as CDPH guidance follows the current state of the pandemic. Employers should also monitor their local health departments for any applicable health orders as these local departments may opt to issue more restrictive quarantine requirements.

As CDPH guidance updates frequently, employers should regularly check the CDPH's recommendations regarding quarantine and return-to-work following a close contact. CDPH issued its latest guidance on April 6, stating that all asymptomatic close contacts do not need to quarantine as long as they test within 3-5 days after their last exposure and wear a face covering around others for ten days

In addition to quarantine requirements, the Revised ETS also defers to CDPH regarding the Revised ETS definitions of close contact, infectious period, and the amount of time an employee is deemed a "return case" (i.e. recovered from COVID and thus exempt from some Revised ETS requirements), as well as any CDPH orders that may require face coverings. Employers should ensure that their compliance with the Revised ETS requirements takes into account these CDPH provisions.

Updated Isolation Requirements for COVID-19 Cases

The Revised ETS provides specific isolation and return-to-work requirements for COVID-19 cases, which mirrors the latest CDPH guidance. These requirements apply to all COVID-19 cases regardless of vaccination status or prior infection. Additionally, all return-to-work cases must wear a face covering in the workplace for 10 days following their first positive test (asymptomatic cases) or the onset of symptoms (symptomatic cases).

• Asymptomatic Cases – Asymptomatic employees shall not return to work until:
  
  • At least 5 days have passed since the date of the first positive COVID-19 test; and
  • The employee either (a) tests negative with a specimen collected on the 5th day or later from the date of the first positive COVID-19 test; or (b) 10 days have passed from the date of the first positive COVID-19 test.
• Symptomatic Cases With Resolving Symptoms – Symptomatic employees whose symptoms are resolving shall not return to work until:
  
  • At least 5 days have passed since the date of onset of symptoms; and
  • At least 24 hours have passed since the employee had a fever of 100.4˚F or higher without the use of fever reducing medications; and
  • The employee either (a) tests negative with a specimen collected on the 5th day or later from the date of onset of symptoms; or (b) 10 days have passed from the date of onset of symptoms.
• Symptomatic Cases With Symptoms That Are Not Resolving – Symptomatic employees whose symptoms are not resolving shall not return to work until:
  
  • At least 24 hours have passed since the employee had a fever of 100.4˚F or higher without the use of fever reducing medications; and
  • Either (a) symptoms are resolving; or (b) 10 days have passed from the date of onset of symptoms.
• Employees in Outbreak or Major Outbreak Situations Who Do Not Comply with Testing Requirements – the Revised ETS language does not clearly address this situation, but the Revised ETS FAQs state that "[i]f an employee is unable or choosing not to test, isolation can end and the employee may return to the workplace after day 10 if they are fever-free for 24 hours without the use of fever-reducing medications."

Under Executive Order N-84-20, any future revisions to CDPH orders that render isolation periods shorter than the Revised ETS will control in the workplace.

Removal of Vaccination Status and Expanded Definition of COVID-19 Test

The definition of "fully vaccinated" has been deleted from the Revised ETS. The removal of this definition expands employers' obligations in some respects, including that employers must now offer respirators to all employees upon request and that employers must offer testing to all employees with COVID-19 symptoms regardless of vaccination status. The single exception to the testing requirement is for any "returned cases" (except in outbreak situations, as described above). The Revised ETS also no longer requires unvaccinated employees to wear face coverings, except in certain circumstances, such as when required by the CDPH, when required by the Revised ETS's isolation/return to work protocols, and in outbreak and major outbreak situations.

The Revised ETS also expands what is considered a COVID-19 test by permitting self-read and self-administered tests to meet return-to-work requirements as long as another independent means of verification of test results can be provided, such as a time-stamped photograph of the test results.

Removal of Cleaning Requirements

The Revised ETS removes surfaces from the definition of "COVID-19 Hazard." The practical effect for employers is that this removes all of the cleaning and disinfecting requirements under the current ETS, including cleaning all areas used by a COVID-19 case.

Key Takeaways

• The above discussion covers some of the key changes to the Revised ETS, but is not an all-inclusive list.
• Employers should review the full text of the Revised ETS and ensure their written COVID-19 Prevention Programs are up to date and their employees are trained to comply with the requirements of the Revised ETS.
• In light of the Revised ETS's reliance on direction from the CDPH and local health departments, employers should also keep abreast of changes and updates from those agencies, especially regarding close contact measures, quarantine and isolation protocols, and face mask obligations.

The full language of the Revised ETS is available here. Cal/OSHA also has provided updated FAQs, which are available here.

DWT'S OSHA team is available to advise and assist with complying with this constantly evolving and complex legal area.

FOOTNOTE

1  With some exceptions, the Revised ETS defines an "exposed group" to "all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk infectious period. A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas."