An Important Update

In June 2021, we gave you an update on the revised Emergency Temporary Standards that would be going into effect that month. As of January 2022, these Emergency Temporary Standards (the “ETS”) are being revised again, in the ongoing fight against COVID-19 in the workplace.

In this update, we’ll be explaining the developments that employers need to be aware of.

Recap: What Are Emergency Temporary Standards?

California Occupational Safety and Health Administration or “Cal/OSHA” is the agency in charge of protecting public health and safety through regulations related to hazards on the job in California workplaces. As part of these regulations, Cal/OSHA requires that qualifying employers create illness and injury prevention programs meant to help identify and eliminate danger before accidents and illnesses occur.

It’s important to note that Cal/OSHA requires employers to eliminate dangers in the workplace. As we’ve all learned throughout the pandemic, there is no surefire way to eliminate COVID-19, so Cal/OSHA has scrambled to adjust their requirements for employers during this time, in regard to COVID-19 specifically.

In late 2020, Cal/OSHA released the first of its COVID-19 Emergency Temporary Standards, which basically said that while there’s no way to absolutely ensure that COVID-19 could be eliminated, employers could still do a lot to minimize risk in the workplace. One facet of these ETS was that they required employers to ensure most workers (with some very limited exceptions) wear face coverings to prevent exposure in the workplace; it also required physical distancing and other types of risk controls.

As the pandemic continues, variants emerge, and the standards from the Centers for Disease Control and the California Department of Public Health change, the ETS have been updated over time. This is the first of what will likely be several 2022 changes to the ETS.

Who do the Emergency Temporary Standards Apply To?

The ETS applies to all California employers, employees, and to all places of employment. They apply to both private and public employers, for-profit and nonprofit alike. However, there are a few exceptions. The ETS does not apply to:

• Work locations where there is only one employee who does not have contact with other people.
• Employees who are working from home.
• Employees who are covered by the Aerosol Transmissible Diseases regulation.
• Employees working from a location chosen by the employee, which is not under the control of the employer (for instance, an employee teleworking from a café or a friend’s home).

If an employee works in a hybrid environment, the ETS may apply in some environments and not others. For example, if an employee works partially from a shared office under the control of the employer on some days and works from home on other days, the ETS will apply when they are in the shared office environment but not when they work from home.

Basic Requirements Under the ETS

To comply with the ETS, an employer must develop a written COVID-19 Prevention Program or ensure its elements are included in an existing Injury and Illness Prevention Program (IIPP). The employer must do the following in accordance with their written program:

• Communicate to employees about the employer’s COVID-19 prevention procedures.
• Identify, evaluate and correct COVID-19 hazards.
• Require and provide face coverings and respirators in the manner and in the circumstances specified in the ETS.
• Advise employees they can wear face coverings at work, regardless of their vaccination status, without fear of retaliation by the employer.
• Use engineering controls, administrative controls and personal protective equipment under certain circumstances.
• Follow procedures to investigate and respond to COVID-19 cases in the workplace.
• Provide COVID-19 training to employees.
• Make testing available at no cost to employees who have had a “close contact” (as defined in the ETS) with a person with COVID-19, and in the case of multiple infections or a major outbreak, make testing available at no cost on a regular basis for employees in the exposed work areas. This requirement does not apply to exposed employees who are fully vaccinated and have no symptoms, except during major outbreaks.
• Exclude COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk. Exposed employees who are fully vaccinated and have no symptoms do not need to be excluded.
• Follow return to work criteria.
• Maintain records of COVID-19 cases, and report serious illnesses to Cal/OSHA and to the local health department when required.

These are the basic requirements of the ETS and have been throughout the length of their being in effect. However, some of the details of each bullet have gotten an update, which is what we’ll be covering below.

Changes Going into Effect on January 14, 2022

COVID-19 Testing

The ETS require employers to provide COVID-19 testing at no cost, during paid time, to all employees who had “close contact” while in the workplace/undertaking work duties. Close contact is defined as, “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the ‘high-risk exposure period’…This definition applies regardless of the use of face coverings.”

The high-risk exposure period is defined in two ways: “for COVID-19 cases who develop COVID-19 symptoms, from two days before they first develop symptoms until all of the following are true: it has been 10 days since symptoms first appeared; 24 hours have passed with no fever, without the use of fever-reducing medications; and symptoms have improved. For COVID-19 cases who never develop COVID-19 symptoms, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.”

This is a significant change to the previous ETS, which excluded asymptomatic, fully-vaccinated employees. The revised ETS removed this exclusion, and now all employees are included, regardless of vaccination status. The limited testing exception for those who recently recovered from COVID-19 remains the same.

All tests must be cleared, approved, or authorized, including in an Emergency Use Authorization (“EUA”), by the United States Food and Drug Administration (“FDA”) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test) and administered in accordance with the authorized instructions.

Note that tests that are both self-administered and self-read will not satisfy this requirement unless observed by the employer or an authorized telehealth proctor. This would mean home tests that are not read by the employer will not be satisfactory. This is in an effort to ensure employers are able to meet their record-keeping requirements and to minimize the chance of fraudulent test results being provided to employers.

Tests which satisfy the new ETS requirements include tests where the specimens are processed by a lab, proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by the employer.

Face Coverings

The definition of “face covering” has been updated. To be considered satisfactory under the ETS, the face covering must be a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers (i.e., fabrics that do not let light pass through when held up to a light source) that completely covers the nose and mouth and is secured to the head with ties, ear loops, or elastic bands that go behind the head. This definition includes clear face coverings or cloth face coverings with a clear plastic panel that, despite the non-cloth material allowing light to pass through, otherwise meet this definition and which may be used to facilitate communication with people who are deaf or hard-of-hearing or others who need to see a speaker’s mouth or facial expressions to understand speech or sign language respectively.

Previously, the ETS state that a face covering must not have any visible holes or openings and must cover the nose and mouth. They have since updated these requirements, and now the face mask must be a solid piece of material without slits, visible holes, or punctures, and must fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face.

A face covering does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric. If gaiters are worn, they shall have two layers of fabric or be folded to make two layers.

Employers are required to accommodate employees who cannot wear face coverings due to a disability, and whose condition or disability also does not permit a non-restrictive alternative. In such cases, the employee will not be required to wear a face covering, but must remain at least six feet apart from others and either get fully vaccinated or tested weekly at the employer’s expense.

And as a side note related to face coverings, previously under the ETS, employers that were screening employees entering the workplace could allow fully vaccinated employees to remove their face coverings during screening. Under the new ETS, the employer shall ensure that face coverings are used during screening by both screeners and employees, regardless of their vaccination status.

Exclusion from Work

The ETS generally require employers to exclude employees who had “close contact” with an infected individual. What follows are very detailed guidelines, so pay close attention to the highlighted criteria!

• • Asymptomatic, fully-vaccinated employees do not need to be excluded if they wear a face covering and maintain six feet of distance from others at the workplace for fourteen (14) days following the last date of close contact.
  • Asymptomatic, unvaccinated employees who had close contact must be excluded for at least seven (7) days, as long as they are tested at least five (5) days after the contact and the result is negative. When they return, they must wear a face covering and maintain six feet of distance from others while at the workplace for fourteen (14) days following the last date of close contact. So if you’re following along with this math, that’s a twenty-one (21) day window.
  • Employees who do not meet any of the above descriptions, including employees who did not test negative once tested after at least five (5) days after the contact, must be excluded for at least fourteen (14) days. As a reminder, the ETS require exclusion pay for employees who cannot work or telework following workplace exposure. This may be motivation for employers to institute a mandatory vaccination program if they have not already.

Regarding exclusion pay, the Department of Industrial Relations stated in June 2021, “An employee who was excluded from work because of a workplace COVID-19 exposure should receive exclusion pay if: 1) the employee was not assigned to telework during that time; and 2) the employee did not receive Disability Payments or Workers’ Compensation Temporary Disability Payments during the exclusion period.”

Return to Work

Excluded employees that are not fully vaccinated, who have not had COVID-19 in the past 90 days, and are asymptomatic may return to work after:

• • Fourteen (14) days have passed since the last known close contact.  However, the employee who had the close contact is permitted to return early under either of the next two scenarios.

• • Ten (10) days after the close contact if the employee wears a face covering and maintains 6 feet of separation from others for fourteen (14) days; or
  • Seven (7) days after the close contact if the person tested negative for COVID-19 using a test with the specimen taken at least five (5) days after the last known close contact and the person wears a face covering and maintains six feet of distance from others while at the workplace for fourteen (14) days following the last date of close contact.

The return-to-work criteria for symptomatic and asymptomatic COVID-19 cases, as well as close contacts who are symptomatic, remain unchanged.

Definition of “Fully Vaccinated” 

Under the revised ETS, “mix and match” vaccine courses are now considered. A person is considered fully vaccinated either:

• • Two (2) weeks after completing primary vaccination with a COVID-19 vaccine with at least the minimum recommended interval between doses. Primary vaccination refers to vaccination before boosters; or
  • Two (2) 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 4-day grace period) after the first dose.

Generally, compliant vaccines must either have emergency use authorization from the FDA or be listed for emergency use by the (World Health Organization) WHO. Under certain circumstances, employees who were vaccinated as part of a clinical trial will be considered fully vaccinated under the updated ETS.

It is important to note that these definitions do not include boosters. It is likely that future revisions to the ETS will include these, but for now, employers are encouraged to update their policies to go above and beyond these definitions and include the phrase, “received booster, if eligible.” Additionally, depending on your industry, there may be other standards that are applicable to you that require employees to receive boosters if eligible. For example, our therapist clients are covered under the healthcare industry requirements, which do address boosters.

Definition of “Worksite”

In a move to ensure whole businesses and organizations are not affected by outbreaks, the Cal/OSHA modified the previous definition of “worksite.” The updated definition applies only to the building, store, facility, agricultural field, or other location where a COVID-19 case was present during the high-risk exposure period. It does not apply to buildings, floors, or other locations of the employer that a COVID-19 case did not enter, locations where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely.

Next Steps for Employers

This is obviously a lot of information to keep track of, which is another reason why having a written prevention plan is important (you know, in addition to being required under law). Next steps for employers are to update their prevention plans and make sure employees understand the plans. Managers should be re-trained in implementing the plans, paying particular attention to these updates. If you don’t have a prevention plan in place, you can use Cal/OSHA’s Model COVID-19 Prevention Program, which can be downloaded directly (Word Document) by clicking the link here: https://www.dir.ca.gov/dosh/dosh_publications/CPP.doc

If you have any questions about these updated ETS, send an email to bertie@inbetterwetrust.com. We’re happy to help where we can.