California’s Division of Occupational Safety and Health Standards Board met on April 21, 2022, and formally approved the third readoption of its COVID-19 Emergency Temporary Standard by a 6-1 vote. There were no substantive changes from the earlier April 6, 2022 draft text.
The new rules will become effective when the Office of Administrative Law completes its review and files it with the secretary of state, which is anticipated to occur before the end of the first week of May 2022, and will remain in effect through December 31, 2022. According to the summary by Littler Lawfirm, the key takeaways are as follows:
Vaccination Status No Longer Matters. In a stunning reversal, employee vaccination status is no longer a functional part of the proposed ETS. The definition of “fully vaccinated” has been removed from the ETS and the ETS applies to employees without regard to vaccination status. Any employee is now entitled to request a respirator for voluntary use and an employer must offer COVID-19 testing to any employee exhibiting symptoms of COVID-19. At the same time, close contact provisions no longer depend on vaccination status under the new draft ETS text – but this leads to the next key takeaway.
No Set Rules for Close Contact Exclusion. In what is sure to be a controversial move, the proposed ETS has no set rules for close contact exclusion from the workplace. Instead, the proposed ETS now requires that employers “review current [California Department of Public Health] guidance” regarding “quarantine or other measures to reduce transmission,” to “develop, implement, and maintain effective policies” to prevent COVID-19 transmission from close contacts. Even the definition of “close contact” is now subject to change by CDPH “regulation or order.” Although many employers will be relieved by the apparent flexibility, the vagueness of the new rule will certainly cause issues with enforcement and potentially place too much discretion with Cal/OSHA inspectors to determine what is effective. Further, because the draft retains the requirement to provide exclusion pay when workers are excluded from the workplace, ambiguity in this area may be particularly problematic. Finally, in high-risk settings, because CDPH’s current return-to-work guidance still relies on vaccination status, if employers intend to return employees who are exposed to COVID-19 in the workplace prior to a full 10-day quarantine period, collection of proof of vaccination and boosters is necessary.
Specific Rules for COVID-19 Cases. In contrast to the lack of specific close-contact rules, the rules with respect to COVID-19 case exclusion and return are not left to conjecture. The proposed ETS codifies the substance of the exclusion requirements set forth in the current Cal/OSHA ETS FAQs with minor adjustments – for example, the proposed language now clearly states under what circumstances to count exclusion periods from symptom onset versus test date.
Types of Acceptable COVID-19 Tests Broadened. Except for purposes of return to work, the proposed ETS no longer restricts the types of COVID-19 tests that can be used to identify COVID-19 cases or otherwise be made available to employees when required, including during outbreaks. The restriction prohibiting use of self-administered and self-read tests applies only to return-to-work criteria unless “another means of independent verification can be provided,” such as a time-stamped photograph of the test results presumably taken by the employee.
Contaminated Surfaces no Longer a Hazard. Surfaces and objects potentially contaminated with SARS-CoV-2 are no longer included within the definition of “COVID-19 Hazard.” The proposed ETS removes all cleaning and disinfection requirements, including the requirement to clean an area used by a COVID-19 case.
No More Light Test. The requirement that face coverings not allow light to pass through has been removed.
No More Partitions. The minor and major outbreak provisions of the proposed ETS no longer require consideration or use of cleanable solid partitions whenever social distancing cannot be maintained.