Covid regulations for businesses

COVID-19 Regulations For California Businesses Have Not All Gone Away – There is a 3rd Revision to Cal/OSHA’s Emergency Temporary Standards

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Summary

The California Division of Occupational Safety and Health (Cal/OSHA) recently approved the third readoption of the COVID-19 Emergency Temporary Standards (the “new ETS”). The new ETS took effect on May 7, 2022, and will remain in effect until December 31, 2022, when Cal/OSHA is expected to replace it with a permanent standard. The majority of the new ETS has not changed. However, the new ETS includes changes in line with the state’s recent direction of relaxing restrictions, and is more aligned with California Department of Public Health (CDPH) guidance.

Significant Changes

The following are some of the more significant changes.

1. No More Masking or Social Distancing

Masking for employees is no longer required indoors, regardless of vaccination status, unless specifically required by the CDPH. The new definition of “face covering,” unlike in the previous ETS version, now allows for fabric masks that allow light to pass through when held up to a light source. All requirements regarding maintaining six feet of distance from those unable to wear a face covering also have been removed.

2. Relaxed Rules on Exclusion From Work

Under the new ETS, only positive cases must be excluded from work and must receive exclusion pay.

The new ETS contains no set rules for excluding close contacts: employers must only review current CDPH guidance regarding “quarantine or other measures to reduce transmission” for close contacts. CDPH guidelines currently lack exclusion requirements for asymptomatic close contacts. Therefore, employers no longer need to provide exclusion pay to close contacts, unless they are a positive case.

3. Modified Rules on Return to Work

The new ETS rules on when a positive case may return to work largely conform to current CDPH guidance:

  • A positive case with no symptoms or resolving symptoms can return to work after testing negative on the fifth day.
  • A positive case whose symptoms are not resolving may not return to work until at least 24 hours have passed without a fever and 10 days have passed from when the symptoms began.

4. No More Video Monitoring of At-Home Tests

The previous ETS did not allow for self-administered and self-read tests for the employee to return to work unless the tests were observed by the employer or an authorized telehealth proctor. The new ETS eliminates this burdensome requirement and allows such tests if there is an independent alternative way to verify the results (e.g., a time stamped photograph of the results).

5. More Testing Requirements

Under the previous ETS, employers only needed to make testing available to those employees with COVID-19 symptoms who were not fully vaccinated. Under the new ETS, employers will have to offer testing to all employees with COVID-19 symptoms regardless of vaccination status.

6. Increased Obligation to Offer Respirators

Under the previous ETS, employers only needed to provide respirators for voluntary use to all unvaccinated employees upon request. The new ETS requires employers to provide respirators upon request to all employees, regardless of vaccination status.

7. New “Returned Case” Term

The new ETS adds the term “returned case,” meaning an employee who has recovered from COVID-19 in the past 90 days and remains symptom-free. Employers will not have to offer “returned cases” testing in the event of a close workplace contact or if the “returned case” is part of the “exposed group” in the event of an outbreak.

8. No More Disinfecting

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.

9. 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.

Takeaway for Employers

Employers should be aware that the majority of the ETS has not changed since the second re-adoption in January. This includes the obligations to:

  • maintain a written COVID-19 prevention program;
  • provide exclusion pay to positive cases;
  • provide testing at no cost to symptomatic employees and close contacts;
  • screen employees for symptoms; and
  • notify employees of potential exposure following a COVID-19 case and/or outbreak.

However, now that the revised ETS has been adopted by Cal/OSHA, please feel free to contact us if you have questions on how to update your COVID-19 Prevention Program and corresponding protocols and policies to comply with the new ETS.

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