On May 6, 2022, the latest and greatest (third) revision to the Cal/OSHA Emergency Temporary Standards (“ETS”) takes effect. Most of the core requirements that employers must develop, implement, and maintain via a written COVID-19 Prevention Plan remain the same from the prior version, including:
- Communicating, identifying, evaluating, and training on COVID-19 hazards
- Conducting close contact analysis and offering testing, free of charge and during paid time, for employees that have close contact in the workplace
- Providing written notice within one business day to all employees, other employers, and independent contractors who were at the same worksite as the COVID-19 case during the “infectious period” (“Infectious period” now replaces the term “high-risk exposure period”)
- Correcting COVID-19 hazards in the workplace
- Weekly testing for all employees in the exposed group during outbreaks, except for those who recently recovered from COVID-19 and returned to the workplace
However, gone from the new version is any requirement to clean and/or disinfect surfaces from COVID-19. This is a much appreciated change from the prior rule that required employers to clean and sanitize a workstation used by a COVID-19 case, if that station was to be used by another person, within 24 hours. Gone also is the definition of who is considered “fully vaccinated,” as is any requirement for unvaccinated workers to wear face coverings indoors.
Employers must still provide masks upon request by employees, and allow for their free use at the workplace, regardless of vaccination status. Masks are also required to be worn when required by orders from CDPH. An employee who tests positive and is subsequently cleared to return to the workplace must now wear a mask until 10 days have passed from the onset of symptoms or their first positive test, regardless of vaccination status or previous infection, and regardless of testing negative on Day 5 or later.
While social distancing is no longer required in most workplaces and masks are only required under certain circumstances, testing is still required for employees that exhibit COVID-19 symptoms, and in fact is now expanded to include all employees who exhibit symptoms, regardless of vaccination status. With the upcoming flu and allergy seasons, and with many of the symptoms cross-pollinating with COVID-19 symptoms, employers should be aware of this new requirement to provide testing to all employees who exhibit symptoms.
Finally, to meet the return to work criteria, COVID-19 tests may now be self-administered and self-read, but only if independent verification of the results can be provided. Employers should not forget about their responsibility to provide “exclusion pay” for those employees excluded from work due to workplace exposure or infection. Additionally, and unlike the prior year of 2021, employers can no longer require an employee to first exhaust their COVID-19 Supp. Paid Sick Leave balance prior to providing exclusion pay under the ETS.
While many COVID-related masking and other precautionary requirements are lifted, employers will be well-advised to remain vigilant in protecting employees from COVID-19 and remain knowledgeable of the ETS requirements. These regulations likely will continue (in one form or another) for not just the remainder of 2022, but likely well into the future. Doing so will help protect your employees, and help guard against unnecessary visits, complaints, and/or inspections of your workplace by Cal/OSHA.
