On December 16, 2021, California’s Occupational Safety and Health Standards Board adopted its second set of proposed revisions to the Division of Occupational Safety and Health’s (“Cal/OSHA”) COVID-19 Emergency Temporary Standards (“ETS”). Cal/OSHA’s re-adopted ETS, available here, went into effect on January 14, 2022 and are likely to remain in effect until April 2022, at which time Cal/OSHA may roll-out a third set of updated standards.
The revised ETS introduce significant changes for California employers relating to COVID-19 testing, social distancing, and face covering requirements in certain circumstances. Most notably, the revised ETS:
- Contain important changes relating to in-person daily screenings at worksites;
- Include revisions to post exposure notifications, with the requirement being extended to potentially exposed employees and their authorized representatives (as opposed to just close-contacts);
- Require that employers provide post-exposure testing to asymptomatic fully vaccinated employees;
- List specific requirements relating to exclusion of COVID-19 cases and close-contacts as well as return-to-work criteria for COVID-19 cases and close-contacts. Note, however, that prior to the re-adoption of the COVID-19 ETS Cal/OSHA confirmed that the California Department of Public Health’s (CDPH) isolation and quarantine recommendations, issued on December 30, 2021, would replace certain of the exclusion criteria and all of the return-to-work to work considerations currently included in the revised the ETS;
- Include a specific set of requirements for employers who provide housing and/or transportation to employees; and
- Contain revised definitions for the following key terms:
- The definition of “COVID-19 Test” includes not just viral tests, bur also at-home tests, over-the-counter tests, and point-for-care tests. Importantly, the revised ETS provides that a test cannot be self-administered and/or self-read unless the employer or an authorized telehealth provider observes an employee reading a test.
- “Face Coverings” means fabrics that do not allow light pass through when held up to a light source. Masks must fit snuggly over the nose, mouth, and chin with no large gaps on the outside of the face. Additionally, the revised ETS allow for the use of face coverings with a clear plastic panel to facilitate communication with people who are deaf or hard of hearing or need to see a speaker’s mouth or facial expressions to understand speech or sign language.
- “Fully vaccinated” has been expanded to include vaccines administered as part of a clinical trial. The revised ETS does not yet change the definition of “fully vaccinated” to require booster shots.
- “Worksite” is defined in the revised ETS to exclude: (i) locations where a worker worked by him/her/themselves without exposure to other employees; and (ii) a worker’s personal residence or alternative work location chosen by the worker when working remotely.
As of January 1, 2022, Senate Bill 606 created a rebuttable presumption that a health and safety violation by an employer with multiple worksites is enterprise-wide if either of the following is true:
- The employer’s written policy or procedure violates Cal/OSHA regulations; or
- Cal/OSHA has evidence of a pattern or practice of the same violation committed by the employer at one or more of its worksites.
If an employer is unable to rebut the presumption, Cal/OSHA may issue an enterprise-wide citation requiring enterprise-wide abatement, which includes heightened penalties between $8,908 and $124,709 per violation.
What Should Employers Do Now?
- Under Cal/OSHA’s ETS, employers are required to have a written COVID-19 Prevention Program (“CPP”). To assist employers, Cal/OSHA has released an updated model CPP, available here. While the model CPP provides a useful starting point, employers are still required to conduct a workplace-specific evaluation to ensure they are appropriately addressing the hazards facing their workforce. In light of this requirement and the recent changes to the ETS, employers are encouraged to consult with employment counsel regarding appropriate updates to their CPPs. In light of SB 606 and the penalties it authorizes, it is especially important for employers to ensure that their CPPs and related COVID-19 policies and procedures are compliant.
In addition to revising CPPs, employers are encouraged to update their COVID-19 exposure notices (to include both close-contact and potentially exposed employees); familiarize themselves to reporting obligations to local health authorities in cases involving outbreaks; and identify third party testing providers in the event they need to implement free-of-cost testing in compliance with the revised ETS.