On April 21, 2022, Cal/OSHA’s Standards Board voted to approve the Third Readoption of the Cal/OSHA COVID-19 Emergency Temporary Standards (“ETS”). The Third Readoption makes some changes to the ETS previously in effect. Some of the more significant changes include:
Key Definition Changes

Some of the key definitions of terms used throughout the ETS have been altered in such a way that you may need to change some of your practices.

• COVID-19 Test – The definition of “COVID-19 test” has been amended to provide that, to meet the return-to-work criteria, a test may be both self-administered and self-read only if another means of independent verification of the results can be provided (such as a time-stamped photograph of the results).
• Face Coverings – The definition of “face coverings” has been amended to delete the requirement that light does not pass through the mask when it is held up to a light source. This is an improvement as employers had expressed concern that even some N95 masks could not meet this requirement.
• Fully Vaccinated – The definition of “fully vaccinated” has been deleted. This is largely in response to the fact that the face covering provisions of the ETS no longer make a distinction between fully vaccinated employees and unvaccinated employees. However, you should keep in mind that vaccination status may still be relevant for other purposes, including under local public health orders.
• Returned Case – The new language contains a new defined term of “returned case” to largely describe employees who previously had COVID-19 and now have natural immunity. “Returned case” is defined to mean a COVID-19 case who returned to work and did not develop any COVID-19 symptoms after returning. A person shall only be considered a “returned case” for 90 days after the initial onset of symptoms or the first positive test (if no symptoms developed). If a period of longer than 90 days is required by the California Department of Public Health (“CDPH”), that period shall apply.

More Testing of Symptomatic Employees

Under the current ETS, employers only need to make testing available to those employees with COVID-19 symptoms who are not fully vaccinated. The new language eliminates this limitation, meaning you will have to offer testing to all employees with COVID-19 symptoms regardless of vaccination status. This could significantly increase testing costs, so you should have a plan in place to comply with this testing obligation.

Respirators Now Must Be Offered to All Workers

The current ETS requires employers to provide respirators for voluntary use to all unvaccinated employees upon request. The new language eliminates the linkage to unvaccinated employees. Therefore, you will be required to provide respirators upon request to all employees, regardless of vaccination status.

Face Coverings No Longer Mandatory for Unvaccinated Workers

The new language conforms the ETS to recent developments regarding face coverings. After the CDPH changed its face covering guidance to no longer require masks indoors regardless of vaccination status, Governor Newsom issued an Executive Order striking the ETS language that required employers to provide and ensure face coverings were worn by unvaccinated employees. The new amended ETS language reflects these changes.

You should keep in mind that other face covering provisions of the ETS remain in effect. This includes language that allows employees to voluntarily wear face coverings unless it would create a safety hazard.

The new language also deletes the requirement that employees who are exempted from any applicable face covering requirement (such as returning to work following a case or close contact) maintain six feet of social distance from others or be tested weekly. Now the language will merely require such employees to be tested at least once a week.

Cleaning and Disinfection Rules Eliminated

The current ETS requires employers to implement specified cleaning and disinfection procedures, including regularly cleaning frequently touched surfaces and objects. The new language eliminates these requirements in their entirety.

Exclusion and Return-to-Work Criteria Streamlined – But More Changes to Possibly Come

The new language generally eliminates any specific language in the ETS regarding “close contacts” and instead merely cross-references CDPH guidance, simply requiring you to review current guidance and develop policies to prevent transmission by close contacts. It also deletes specific return-to-work criteria for close contacts, meaning you will simply follow the current CDPH and/or local quarantine guidance.

But more changes could be afoot in the near future. On April 6, CDPH released revised Isolation/Quarantine guidance that states that all individuals who are asymptomatic close contacts do not need to quarantine as long as they test within three to five days after their last exposure. At this time, Cal/OSHA had not yet incorporated the revised CDPH guidance into its FAQs and other materials, but we expect them to do so shortly. For now, you should be sure to check local public health orders, as several counties have indicated that they will not be following the new CDPH guidance and instead continue to insist that unvaccinated individuals quarantine for five days after a close contact, consistent with CDC guidance.

The elimination of specific language regarding close contacts is a positive improvement. By cross-referencing to current CDPH guidance, this will allow any changes to CDPH guidance to automatically apply to the ETS and will avoid confusion in the ETS regarding obsolete language.

With respect to COVID-19 cases, the new changes delete the current language in the ETS and instead provide the following (which generally conform to current CDPH guidance):

• COVID-19 cases, regardless of vaccination status or previous infection, who do not develop symptoms or whose symptoms are resolving, shall not return to work until (1) at least five days have passed since testing positive for COVID-19, (2) at least 24 hours have passed without fever, and (3) a negative test is obtained on the fifth day or later (10 days if the employee is unable or chooses not to test).
• COVID-19 cases, regardless of vaccination status of previous infection, whose symptoms are not resolving may not return to work until (1) at least 24 hours have passed without fever, and (2) symptoms are resolving or 10 days have passed since symptoms began.
  ◦ Regardless of vaccination status, previous infection, or lack of symptoms, a COVID-19 case shall wear a face covering in the workplace until 10 days have passed since symptoms began or the date of their first positive test.

Testing Required After Major Outbreaks

The changes to the ETS “major outbreak” requirement generally conform to the changes noted above. There is also one notable change, however. Under the current ETS language, an employer must make COVID-19 testing available to all employees in the exposed group at least twice a week during a major outbreak. This language always caused a bit of confusion … while employers needed to make testing available, do they have to test? The new language clarifies that employers are required to do so in such situations. Employees in the exposed group shall now be tested or shall be excluded and follow the return-to-work requirements of the ETS.

Testing After Exposure Slightly Changed

Under the current ETS, an employer is required to make testing available to all employees who had a close contact to a COVID-19 case in the workplace with an exception for employees that previously had COVID-19 within the last 90 days. The new language simply replaces this exception language with the new term “returned cases” described above.

Final Takeaway

Remember that the rest of the ETS (other than the changes discussed above and a few others) will remain in effect– including your obligation to pay “exclusion pay” to employees who have been excluded from workplace as a COVID-19 case or a close contact.

You should review these changes carefully and make necessary operational changes by May 6, 2022 (the date the ETS will take effect). This will likely require you to make changes to your IIPP and/or Written COVID-19 Prevention Program. The ETS will remain in effect until December 31, 2022. Should you have any questions or concerns, do not hesitate to contact us.