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Review of Cal/OSHA’s Final Proposed Revision to its COVID-19 Emergency Temporary Standard

On April 7, 2022, the Standards Board published its final version of its COVID-19 Emergency Temporary Standard (ETS). The Board is scheduled to vote on, and expected to approve, this revision on April 21, 2022.  Although the ETS will expire on December 31, 2022, the Division is expected to file a certificate of compliance with the state Office of Administrate Law for this final version to become permanent.  The full version of this revised ETS can be found here:

https://www.dir.ca.gov/oshsb/documents/Apr212022-COVID-19-Prevention-Emergency-txtcourtesy-3rd-Readoption.pdf

The following is a comprehensive review of the changes made in this anticipated final ETS revision:

Definitional Changes/Additions

There were definitional revisions, eliminations and additions. 

  • “Close contact” is amended to indicate the California Department of Public Health (CDPH) definition of close contact will control if it is different from the ETS. 
  • “Infectious” period replaces “high risk exposure.”  The infectious period is further amended to indicate the CPDH definition will control if different from the ETS. 
  • “COVID-19 Hazard” is revised to eliminate the reference to objects or surfaces that may be contaminated with SARS-CoV-2. 
  • “Face Covering” definition has been amended to remove the requirement that a two layer non-woven mask must not let light pass through when it is held up to a light source. 
  • “Fully vaccinated” definition is fully eliminated.
  • “Worksite” is amended to clarify this definition of worksite applied for the limited purpose of this ETS only. 
  • “Returned case” is a new definition, although not a new concept.  A returned case is a COVID-19 case who returned to work consistent with the subsection (c)(10) and did not develop any COVID-19 symptoms after returning.  A “returned case” is limited to only 90 days after the initial onset of COVID-19 symptoms.  This concept was previously expressed, albeit confusingly, in prior revisions of the ETS. 

Testing Requirements – In order for a COVID-19 case or close contact to return to work, the COVID-19 test can be both self-administered and self-read only if another means of independent verification of the results can be provided.  An express example provided is if the employee shows the employer a time-stamped photograph of the test results.  While this revision does not expressly indicate so, it appears that if a close contact is at the worksite when he or she first learns of the exposure, an employer could permissible provide a COVID-19 test for the employee to self-administer off the worksite.  Then, the employee could return to the worksite to show the employer the negative test result.  This change is significant because the prior testing requirement prohibited a self-administered and only self-read test, creating logistical complications for employers.  This revision is should ease some of those prior logistical challenges.

This revision also requires employers to offer COVID-19 testing to symptomatic employees, regardless of vaccination status. Testing is not required for returned cases, unless otherwise provided.

Respirator – This revision adds a requirement that if the employer provides respirators for use under the ETS, there is a requirement for the employer to provide “effective training and instruction” to employees.  While there was already a requirement to provide instructions on how to properly wear respirator and perform a seal check, the revisions require the training and instruction be effective.

Face Covering – Consistent with current CDPH requirements, there is no requirement for not fully vaccinated employees to wear face coverings.  In the event an exempted employee is required to wear a face covering (i.e., in circumstances where a close contact returns to work and is required to wear a face covering) but cannot due to a medical condition, the exempted employee no longer has to remain six feet apart from other persons.  In the event an exempted employee is required to wear a face covering but cannot due to infeasibility, that exempted employee is no longer required to remain six feet apart from others. 

Cleaning and Disinfecting – The subsection requiring employers to implement cleaning and disinfecting procedures (i.e. regularly cleaning high frequently touched surfaces) has been eliminated. On a practical basis, employers who have maintained a daily cleaning and disinfecting log throughout this pandemic may no longer need to do so.   

Close Contacts and Review of CDPH Guidance – There is added language expressly acknowledging Executive Order N-84-20, with an indication that the isolation and quarantine periods expressly reflect this Executive Order in subsections (c)(9) and (c)(10).

Employers are also expressly required to review current CDPH guidance for persons who had close contact, including any guidance regarding quarantine or other measures to reduce transmission.  The requirement goes further to require the employer to develop, implement and maintain effective policies to prevent transmission of COVID-19 by persons who had close contact.  The requirement for excluding a close contact from the worksite has been eliminated in favor of deference to the CDPH.

Return to Work Criteria – The previous COVID-19 RTW section was removed and replaced with a new requirement, which more accurately reflects the current recommendations as provided by the CDPH.  The return to work requirement for COVID-19 cases has been broken down into two new categories.

COVID-19 cases, regardless of vaccination status or previous infection, with no symptoms or symptoms resolving, can return to work if:

  • 5 days have passed from the date of COVID-19 symptoms began, or if asymptomatic, from the date of the positive test;
  • 24 hours passed since fever of 100.4 degrees Fahrenheit without fever reducing medication; and
  • A negative COVID-19 test collected on 5th day or later, or 10 days passed from the date of COVID-19 symptoms or if asymptomatic, from date of positive test.

COVID-19 cases, regardless of vaccination status or previous infection, whose COVID-19 symptoms are not resolving, can return to work if: 

  • At least 24 hours passed since fever of 100.4 without fever-reducing medication; and
  • Symptoms are resolving or 10 days have passed from when symptoms began.*

*Under this revision, it appears an employee, regardless of whether the symptoms are resolving, does not have to be excluded from the workplace provided there is no fever and provided 10 days have passed from the date symptoms first started.  This revision is significant as it could reduce an employer’s obligation to pay exclusion pay, particularly in work-related long-haul COVID-19 cases.

Additionally, a COVID-19 case, regardless of vaccination status, pervious infection, or lack of symptoms shall wear a face covering in the workplace for 10 days pass from the first day of symptoms or if asymptomatic, from the date of the positive test. 

This return to work criteria applies regardless of whether an employee has previously been excluded from the workplace or if other precautions were taken in response to an employee’s close contact or membership in an exposed group.

COVID-19 Outbreak – During an outbreak (i.e., 3 or more COVID-19 cases within a 14-day period), no testing is required for returned cases.  If testing is required, it is irrespective of vaccination status.  Those employees with close contact must test negative within three to five days following the close contact or shall be excluded from the work place and follow the return to work requirements as outlined in section 3205(c)(10).  The requirement to use cleanable solid partitions when physical distancing is not feasible has been removed.  Now, if six feet physical distancing is not feasible, the employer is required to distance persons as much as feasible. 

Major Outbreak – During a major outbreak (i.e., 20 or more COVID-19 cases within a 30-day period), employers must require exposed group employees to test.  This is in contrast to the prior version, which simply required the employer make testing available.  Employees in the exposed group shall test or be excluded until the return to work requirements are met pursuant to 3205(c)(10).   Notably, the triggering start date is expressly the date the outbreak begins.  The requirement to install cleanable solid partitions has been removed. 

Employer-Provided Housing – An employee’s vaccination status has no bearing on the employer-provided housing requirements.  Employers are now required to provide training on face coverings, as opposed to simply providing face coverings.  Employers must use face coverings in accordance to guidance from the CDPH and local health department.  The cleaning and disinfecting requirement section is eliminated.  The exemption to quarantine a returned case close contact is eliminated. 

Employer-Provided Transportation – An employee’s vaccination status has no bearing on the employer-provided transportation requirement.  Employers are required to review CDPH and local health department recommendations regarding face coverings, implement these face covering policies and provide training.   The cleaning and disinfecting requirement section is eliminated. 

The Board is scheduled to vote on, and expected to approve, this revision to CalOSHA ETS on April 21, 2022.

Tags

osha, riskmanagement, californialaw, hannabrophy
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