Cal/OSHA Approves the Third Revision of the Emergency Temporary Standards (ETS)

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On April 21, 2022, Cal/OSHA held a public hearing and readopted a modified version of the Emergency Temporary Standards (ETS) that originally went into effect Nov. 30, 2020. According to Cal/OSHA, the third revision takes effect May 7, 2022, and remains in effect through Dec. 31, 2022. The revised ETS are here: https://www.dir.ca.gov/oshsb/documents/Apr212022-COVID-19-Prevention-Emergency-txtbrdconsider-3rd-Readoption.pdf.

The Frequently Asked Questions also have been updated and are here: https://www.dir.ca.gov/dosh/coronavirus/Revisions-FAQ.pdf.

Reminder: The ETS applies to all employees not covered by Cal/OSHA’s Aerosol Transmissible Disease Standards.

Many of the provisions from the second readoption remain in effect, but several significant changes have been made that employers must implement. We have reported each readoption of the ETS –– see the ETS sections immediately preceding this one.

The third readoption is the final ETS that Cal/OSHAS can issue on an emergency basis unless Gov. Newsom issues another executive order authorizing it. Assuming no executive order is issued, the board could consider a permanent infectious disease standard for general industry. The public hearing April 21 included robust discussion about what a permanent standard would look like. It included whether it would be a permanent infectious disease standard, expansion of the aerosol transmissible disease standards, and/or amendment of Cal/OSHA's Injury and Illness Prevention Program (IIPP) standard. We will update this section when, and if, a final, permanent version is introduced.

The third readoption continues Cal/OSHA’s alignment of ETS provisions with the California Department of Public Health (CDPH) regarding isolation, quarantine, and return-to-work guidelines.

Cal/OSHA has prepared two fact sheets. One is a bullet-point checklist of changes to the ETS, found here: https://www.dir.ca.gov/DOSH/dosh_publications/COVIDOnePageFS-04-21-2022.pdf. The other summarizes isolation and quarantine guidelines, found here: https://www.dir.ca.gov/dosh/dosh_publications/Isolation-and-Quarantine-fs.pdf.

Provisions that Remain the Same

Employers must establish, implement, and maintain an effective written COVID-19 prevention program. It must:

• Identify and evaluate employee exposures to COVID-19 health hazards.
• Implement effective policies and procedures to correct unsafe and unhealthful conditions.
• Allow adequate time for handwashing.

Employers must train and instruct employees on how COVID-19 is spread, infection prevention techniques, and information regarding benefits related to COVID-19 that affected employees might be entitled to under applicable federal, state, or local laws.

Key changes are discussed below.

The Definition of Vaccination Status Is Removed

The third readoption of the standards eliminates the definition of “fully vaccinated.” Now, all ETS provisions are applicable regardless of vaccination status. All employees may request a respirator for voluntary use, and employers must offer COVID-19 testing available, at no cost, to all employees exhibiting COVID-19 symptoms during their paid time. In previous versions of the ETS, only nonvaccinated employees were entitled to an employer-provided respirator, and employers were required to offer testing only to unvaccinated employees. Employers are now required to foot the bill for testing all employees who may have been exposed outside the workplace.

No Set Rules for Close Contact Exclusion

The Cal/OSHA Emergency Temporary Standards direct employers to adhere to the state Department of Public Health guidelines for exclusion of close contacts. Currently, the CDPH doesn’t require exclusion of close contacts unless they occur in high-risk exposure settings –– emergency shelters, health-care settings, local correctional and detention centers, homeless shelters, long-term care settings, and adult and senior care facilities. The CDPH does recommend close contacts be tested within three to five days after last exposure. No exclusion is required unless the close contact develops symptoms or tests positive. All close contacts should wear face coverings for 10 days. See CDPH isolation guidance: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx.

The ETS didn’t eliminate exclusion pay per se, but exclusion pay for close contacts is not required under the CDPH except when (1) a close contact develops symptoms subsequent to the work exposure and is seeking a diagnosis; (2) the employer excludes the close contact from the workplace when there’s no requirement to do so; or (3) the CDPH or local public health authority excludes the close contact.

At the public hearing on April 21, 2022, Cal/OSHA clarified that the CDPH definition of “close contact,” which is broader than the ETS definition, will not govern or change the definition of close contact in the ETS. The standards define “close contact” as being within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period that overlaps with the infectious period of the COVID-19 case. Cal/OSHA stated that only an order or regulation issued by the CDPH (and not merely guidance) would supersede the ETS definition of close contact.

Businesses still must develop, implement, and maintain policies to prevent transmission of COVID-19 by persons who had close contacts.

Employers are encouraged to periodically review the CDPH isolation guidance to ensure compliance with quarantine and isolation requirements.

Specific Rules for COVID-19 Cases

The ETS clarify the quarantine and return-to-work requirements for COVID-19 cases –– that is, employees who test positive. The standards confirmed that exclusion and return-to-work criteria will follow the CDPH recommendations. So, if the CDPH changes its guidance, it will supersede the ETS requirements. COVID-19 cases are treated the same regardless of vaccination status or previous infection. Per the CDPH, employees may return to work:

• if they are asymptomatic or their symptoms are resolving:
  • five days after the date the symptoms began or, if symptoms don't develop, five days from the date of the first positive test;
  • if at least 24 hours have passed after a fever of 100.4 degrees or higher has resolved without the use of fever-reducing medicine;
  • if a test collected from a specimen on the fifth day or later is negative. If the employee is unable to test, or the employer doesn’t require a test, 10 days must have passed from the date the symptoms began or, if the person does not develop symptoms, from the date of the positive test.
• Employees with COVID-19 symptoms that are not resolving, may return to work:
  • when at least 24 hours have passed since a fever of 100.4 degrees or higher has resolved without the use of fever-reducing medication; and
  • when symptoms are resolving or 10 days have passed since they began.

Finally, a person with COVID-19 must wear a face covering in the workplace until 10 days have passed since the symptoms began or, if he or she did not have symptoms, from the date of the first positive test.

The return-to-work criteria 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.

Persons Who Should Isolate

Persons Who Test Positive for COVID-19

Recommended Actions

Everyone, regardless of vaccination status, previous infection, or lack of symptoms

Stay home (PDF) for at least five days after symptoms start (or after the date of the first positive test if there are no symptoms). Isolation may end after day five if symptoms are not present or are resolving, or a diagnostic specimen* collected on day five or later tests negative. If unable to test, choosing not to test, or testing positive on day five (or later), isolation may end after day 10 if fever-free for 24 hours without the use of fever-reducing medications. If fever is present, isolation should be continued until 24 hours after it resolves. If symptoms, other than fever, are not resolving, continue to isolate until they resolve or until after day 10. Per CDPH masking guidance, infected persons should wear a well-fitting mask around others for a total of 10 days, especially in indoor settings (see masking section below for additional information). *Antigen test preferred

Close Contacts – General Public (No Quarantine)

Asymptomatic Persons Who are Exposed to Someone with COVID-19 (No Quarantine)

Recommended Actions

Everyone, regardless of vaccination status Persons Infected within the previous 90 days do not need to be tested, quarantined, or excluded from work unless symptoms develop.

Test within three to five days after last exposure. Per CDPH masking guidance, close contacts should wear a well-fitting mask around others for a total of 10 days, especially in indoor settings (see masking section below for additional information). Get vaccinated or boosted. If symptoms develop, test and stay home (see earlier section on symptomatic persons). AND If test result is positive, follow isolation recommendation above (Table 1).

Face Coverings

Employers no longer must provide face coverings to employees who aren’t fully vaccinated to wear indoors or in vehicles, and the face-covering mandate for unvaccinated employees is dropped. But if local health orders or the CDPH require the provision of face coverings, the employer must follow them. In prior versions of the ETS, face masks could not have any light passing through the fabric, but the third readoption eliminates that requirement.

Types of Acceptable COVID-19 Tests Broadened

As long as the test has an emergency use authorization it may be used by employees to test for COVID-19. That means that employees may be provided antigen tests to self-administer and self-read. Such tests may be used to meet return-to-work requirements, but only if another means of independent verification of the results can be provided. For example, an employee may provide a time-stamped photograph of the test results for return-to-work purposes.

Contaminated Surfaces No Longer a Hazard

Surfaces and objects potentially contaminated with COVID-19 are no longer included within the definition of a COVID-19 hazard. The ETS removed all cleaning and disinfection requirements, including the requirement to clean an area used by a COVID-19 case.

Despite the change, the potential exposure notice required by Labor Code § 6409.6 requires employers to describe their cleaning and disinfecting policies.

Outbreaks and Major Outbreaks

In an outbreak setting (three or more COVID-19 cases within a 14-day period), employers still must make COVID-19 testing available at no cost to all employees in the exposed group, regardless of vaccination status. There are some exceptions, including persons not present at the workplace during the relevant 14-day period, and now, those who are considered to be a “returned case,” discussed below.

Notably, employees who had close contacts during an outbreak must have a negative test taken within three to five days after the close contact, or must be excluded and follow the emergency standards’ return-to-work requirement.

In the event of a major outbreak (20 or more employees within an exposed group in the workplace during the infectious period over a 30-day period), employees in the exposed group are required to be tested or must be excluded and must follow the return-to-work requirements.

Employers no longer must consider using cleanable solid partitions when social distancing cannot be maintained.

Returned Cases – Applicable to Outbreaks

“Returned cases” is a new definition. It applies similarly to prior versions of the ETS in which COVID-19 cases who return to work and, as a result of having the infection, were subject to relaxed protocols (similar to vaccinated employees) because of their 90-day temporary immunity.

The ETS define “returned case” as a person with COVID-19 who has met the ETS return-to-work criteria and did not develop COVID-19 symptoms after returning to work. A person is considered a “returned case” for only 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. Employers needn't provide testing to returned cases who are close contacts or to asymptomatic returned cases in the exposed group for an outbreak. After 90 days symptom-free, such individuals are removed from the status of “returned case.”

We will continue to monitor Cal/OSHA and CDPH guidelines and will update this section if further changes are made.

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