On April 21, 2022, the Cal/OSHA Standards Board approved the Third Readoption of the ETS. Per Governor Newsom’s Executive Order N-23-21, the Third Readoption will be effective upon filing by the Office of Administrative Law (OAL) with the Secretary of State and will remain in effect for no longer than December 31, 2022. The Second Readoption is set to expire in May 5, 2022, and it is expected that the Third Readoption will be filed and become effective on or around that date. Employers in California should update their COVID-19 ETS policies to ensure continued compliance with Cal/OSHA’s changes in the Third Readoption, which are summarized in the article below.
On February 28, 2022, California Governor Gavin Newsom extended the second readoption of the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Prevention Emergency Temporary Standard (ETS) currently in effect, moving the ETS’s expiration date to May 5, 2022. The Cal/OSHA Standards Board has also proposed that a new version be implemented via a third readoption of the ETS, which will be discussed as an agenda item at its upcoming meeting on April 21, 2022.
Our prior client alert outlined the material changes between the original Cal/OSHA ETS and the second readoption that took effect on January 14, 2022, which can be found here. The proposed Third Readopted ETS, if implemented, will make some additional material changes and clarifications, including acceptable return-to-work criteria, elimination of certain cleaning and social distancing requirements, and creation of a “returned case” category of workers recovered from COVID-19, discussed in detail below.
The proposed Third Readopted ETS maintains the majority of the current Cal/OSHA ETS requirements. Generally, California employers must continue to maintain a COVID-19 prevention program that is effective, that addresses, identifies and evaluates COVID-19 health hazards, and that provides for employee training on COVID-19 and other safety matters.
We highlight the proposed revisions that the Cal/OSHA Third Readopted ETS makes to the current Cal/OSHA Second Readopted ETS in the following chart.
Second Readopted ETS
Third Readopted ETS
Defines a COVID-19 test as a cleared, approved or authorized test, including an EUA by the FDA, to detect current infection that is administered in accordance with the instructions and is “not both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.”
A COVID-19 test taken for return-to-work purposes may be both self-administered and self-read, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
Face Covering Requirements
A face covering generally must not let light pass through when held up to a light source, except that clear face coverings or cloth face coverings with clear plastic panels are OK if they otherwise meet the definition.
Elimination of the light test and no requirement of masking indoors for anyone.
If the employee’s medical or mental health condition or disability does not permit the employee to wear a non-restrictive alternative, the employee must be at least six feet apart from all other persons and either fully vaccinated or tested at least weekly for COVID-19 during paid time and at no cost to the employee.
Social distancing is no longer required. In addition, the accommodated employee must test weekly regardless of vaccination status.
Respirators and Face Coverings Provided by the Employer
Employees who are not fully vaccinated may request a free respirator from the employer.
Face coverings are recommended outdoors for people not fully vaccinated if six feet of distance cannot be maintained; the employer shall provide face coverings for all employees who are not full vaccinated and ensure they are worn when indoors or in vehicles.
All employees may request a free respirator from the employer, irrespective of vaccination status.
Face covering recommendations and requirements for non-fully vaccinated people are rescinded.
Rules for Excluding Employees from the Workplace After “Close Contact” with a COVID-19-Positive Individual
Employees who were fully vaccinated before the close contact and who do not develop COVID-19 symptoms need not be excluded if they wear a face covering and maintain six feet of distance from others at the workplace for 14 days following the last date of close contact.
Employees who previously had COVID-19 within the last 90 days, returned to work under the return-to-work guidelines set forth in the Cal/OSHA ETS and are asymptomatic do not need to be excluded if they wear a face covering and maintain six feet of distance from others at the workplace for 14 days following the last date of close contact.
Employees not fully vaccinated and who have not had COVID-19 in the past 90 days and are asymptomatic must quarantine but may return to work after:
14 days have passed since the last known close contact;
10 days have passed since the last known close contact and the employee wears a face covering and maintains six feet of distance while at the workplace until 14 days following the last date of close contact; or
Seven days have passed since the last known close contact and the employee tested negative for COVID-19 at least five days since the last known close contact, wears a face covering and maintains six feet of distance while at the workplace until 14 days have passed following the last date of close contact.
Employees who had a close contact and develop COVID-19 symptoms are excluded from the workplace and returned upon the timeline applicable to symptomatic COVID-19 cases.
Employers must review current CDPH guidance for persons who had close contacts, including any guidance regarding quarantine or other measures to reduce transmission. Employers shall develop, implement and maintain effective policies to prevent the transmission of COVID-19 by persons who had close contacts.
The employer must demonstrate it has met the applicable requirements below:
(A) COVID-19 cases, regardless of vaccination status or previous infection, who do not develop COVID-19 symptoms or whose COVID-19 symptoms are resolving, shall not return to work until:
1. At least five days have passed from the date that COVID-19 symptoms began or, if the person does not develop COVID-19 symptoms, from the date of the first positive COVID-19 test;
2. At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medications; and
3. A negative COVID-19 test from a specimen collected on the fifth day or later is obtained; or, if unable to test or the employer chooses not to require a test, 10 days have passed from the date that COVID-19 symptoms began or, if the person does not develop COVID-19 symptoms, from the date of first positive COVID-19 test.
(B) COVID-19 cases, regardless of vaccination status or previous infection, whose COVID19 symptoms are not resolving, may not return to work until: 1) At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medication; and 2) Symptoms are resolving or 10 days have passed from when the symptoms began.
(C) Regardless of vaccination status, previous infection or lack of COVID-19 symptoms, a COVID-19 case shall wear a face covering in the workplace until 10 days have passed since the date that COVID-19 symptoms began or, if the person did not have COVID-19 symptoms, from the date of their first positive COVID-19 test.
(D) These requirements apply regardless of whether an employee has previously been excluded or other precautions were taken in response to an employee’s close contact or membership in an exposed group.
Definition of Fully Vaccinated
The definition of “fully vaccinated” was updated to acknowledge that those receiving “mix-and-match” vaccines may still qualify. “Fully vaccinated” means:
A person’s status two weeks after completing primary vaccination with a COVID-19 vaccine with at least the minimum recommended interval between doses in accordance with the approval, authorization or listing that is: (1) approved or authorized for emergency use by the FDA, (2) listed for emergency use by the World Health Organization (WHO) or (3) administered as part of a clinical trial; or
A person’s status two weeks after receiving the second dose of any combination of two doses of a COVID-19 vaccine that is approved or authorized by the FDA or listed as a two-dose series by the WHO. The second dose must not be received earlier than 17 days (21 days with a four-day grace period) after the first dose.
The definition of “fully vaccinated” is deleted. Prior distinctions in the second readopted ETS between fully vaccinated and non-fully vaccinated people have been removed throughout the draft third readopted ETS.
The draft Third Readopted ETS makes the following additional changes:
Required cleaning and disinfecting procedures, and references to contaminated objects or surfaces, have been deleted.
In an outbreak situation, employees who had close contacts must have a negative COVID-19 test taken between three and five days after the close contact or must be excluded and follow the return-to-work requirements starting from the date of the last known close contact. Further, physical partitions are no longer required.
A new definition for “returned case” has been added; this means a COVID-19 case who returned to work under Cal/OSHA requirements and did not develop any COVID-19 symptoms after returning. A person shall only be considered a returned case for 90 days after the initial onset of COVID-19 symptoms or, if the person never developed COVID-19 symptoms, for 90 days after the first positive test. If a period of other than 90 days is required by a CDPH regulation or order, that period shall apply.
The term “high-risk exposure period” was changed to “infectious period.”
California employers should work with counsel to monitor the status of the third readopted ETS, and if implemented, review their current Cal/OSHA ETS safety policies to ensure that their policy is updated with these latest changes once they are confirmed to be in place. For assistance with these updates, you may contact the authors of this article or your McDermott lawyer for more information.