Cal/OSHA Proposes Changes to Third COVID-19 ETS; Standards Board to Consider Adoption on April 21

On November 30, 2020, the California Division of Occupational Safety and Health (Cal/OSHA) adopted the first COVID-19 Emergency Temporary Standards for California. As of April 6, 2022, Cal/OSHA has proposed a third readoption with additional changes and adjustments based on the development of its understanding of COVID-19.

The California Occupational Safety and Health Standards Board will discuss and vote on the published proposal at its April 21, 2022, meeting. If the Standards Board adopts the ETS, the revised regulation will remain in effect until December 31, 2022. The substantial and main revisions include:

• changes to what qualifies as a COVID-19 test to include both self-administered and self-read tests if the results can be verified, such as through the use of a time-stamped photo;
• a change in the ETS’s terminology, from “high risk exposure period” to “infectious period”;
• changes to the definition of what constitutes a face covering to exclude whether light can pass through the fabric as a factor in whether the covering is acceptable;
• elimination of the term “fully vaccinated”;
• introduction of the new term “returned case” to refer to workers who have had COVID-19 and have subsequently returned to work and for whom testing is not required;
• elimination of cleaning and disinfecting procedures;
• a requirement that symptomatic employees be tested regardless of their vaccination status;
• an explanation that close contact exclusions are governed by California Department of Public Health (CDPH) guidelines;
• COVID-19 positive cases with no symptoms or resolving symptoms can return to work after testing negative on the fifth day;
• a new requirement that workers who have tested positive and have symptoms that are “not resolving” (which is not defined in the regulation) may return only after ten days or after their symptoms resolve;
• a continued requirement of testing for outbreaks, but partition requirements have been replaced with a requirement that employees maintain a physical distance of six feet or as much distance between persons as feasible; and
• a change to the requirement that testing be “required”—rather than simply “made available”—for major COVID-19 outbreaks (defined as twenty positive tests in thirty days).

Ogletree Deakins will continue to monitor and report on developments with respect to California’s COVID-19 mandates and will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on the California blog as additional information becomes available. For a detailed discussion on this development, please join us for a one-hour webinar, “Is the Third Time a Charm? Cal/OSHA Set to Revise Its COVID-19 ETS Again,” on Friday, April 22, 2022, at 11:00 a.m. Pacific. To register for this timely program, click here.