Cal/OSHA Releases Proposed Language for Next Readoption of COVID-19 Prevention Emergency Temporary Standards

On October 20, 2021, California’s Division of Occupational Safety and Health (known as Cal/OSHA) issued proposed language for the second readoption of Emergency Temporary Standards (ETS) for COVID-19 Prevention. The readoption would provide for the proposed regulation to be in place from January 14, 2022, to April 14, 2022.

Highlights of the Proposed ETS Revision

The new proposal does not change the definitions of the ETS but does include substantive changes, including the following.

COVID-19 Prevention

With regard to COVID-19 prevention, the proposal changes the following sections.

3205(c)(2): During screening for employees, face coverings must be used for both vaccinated and unvaccinated employees.

3205(c)(3)(B)(5): If a case occurs in the workplace, employers would be required to provide testing for all nonsymptomatic close contacts, including those who are vaccinated.

3205(c)(5): Employers are required to make COVID-19 testing available to both vaccinated and unvaccinated employees.

3205(c)(9): This section includes a few changes to exclusion protocols after a close contact. These include changes to:

• (9)(B), which states that if an employer does not exclude an employee pursuant to one of the below exceptions, then the employer must provide “information about any applicable precautions recommended by CDPH [the California Department of Public Health] for persons with close contacts.”
• (9)(B)(1)&(2), which requires vaccinated workers (or those with natural immunity) who remain asymptomatic and are not excluded to wear a face covering for 14 days after close contact, maintain social distancing for 14 days, and get a COVID-19 test 3-5 days after close contact.

3205(c)(10)(D): The proposal revises this return-to-work provision to provide that, if an individual returns to work before 14 days, he or she must wear a face mask and maintain social distancing until 14 days have passed. In other words, if an employee returns after 10 days or 7 days due to a negative polymerase change reactions (PCR) test, he or she must wear a face mask and maintain 6 feet distancing for the remaining 7 or 4 days, respectively.

Oubreaks

• 1(b): In an outbreak, employers will be required to test even vaccinated individuals in an exposed group.

Employer Provided Housing

• 3(c): Previously, ventilation had to be maximized only if some individuals were unvaccinated. Under the proposal, this is a requirement regardless of vaccination status. Housing unit ventilation must be maximized no matter whether workers are vaccinated or unvaccinated.
• 3(g): All employee residents must be tested if there were 3 or more cases in their housing unit in a 14-day period.
• 3(h)(1): Housing quarantine policies presently exclude asymptomatic vaccinated close contacts from being quarantined, but this exception is being removed.

Employer Provided Transportation

• 4(c)(2): In transit, all employees, regardless of vaccination status, must be provided with and wear face masks.

Timeframe for Compliance

The California Occupational Safety and Health Standards Board will vote on these proposed changes to the ETS.  However, the proposal is not on the next scheduled meeting agenda, October 21, 2022. Any vote to adopt the proposed regulations will occur at a future Standards Board meeting.

Ogletree Deakins will continue to report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.