On January 24, 2022, the California Division of Occupational Safety and Health (Cal/OSHA) released new guidance in the form of answers to frequently asked questions (FAQs) regarding the COVID-19 Prevention Emergency Temporary Standards (ETS) to further clarify employer obligations.
Cal/OSHA readopted an updated version of the COVID-19 ETS, which went into effect on January 14, 2022. Prior to the readoption of the COVID-19 ETS, Cal/OSHA confirmed that the California Department of Public Health’s (CDPH) isolation and quarantine recommendations, issued December 30, 2021, would replace the Cal/OSHA COVID-19 ETS quarantine and isolation periods.
The revised FAQs come on the heels of questions regarding employer obligations under the text of the COVID-19 ETS, when read in conjunction with the CDPH’s isolation and quarantine guidelines. The FAQs address a number of revisions, including the following:
Self-Administered Tests
An over-the-counter test may be permissible if self-administered and self-read, if the testing is “observed by the employer or an authorized telehealth proctor.” The FAQs further state that a test is independently confirmed if it is (1) “a proctored test that is supervised by a licensed, authorized telehealth provider via video proctoring, or by a point-of-care test provider”; (2) a test proctored by the employer, including by video; or (3) a test “that features digital reporting of date and time-stamped results.”
Tests Following Close Contact
Employees (unvaccinated or vaccinated and booster-eligible, but who have not yet received their booster doses) who were exposed to someone with COVID-19 under Table 2 of the guidance and who are unable to test on day five must quarantine for ten days. Employees (boosted or vaccinated but not yet booster-eligible) who were exposed to someone with COVID-19 under Table 3 of the guidance and who are unable to test on day five must follow COVID-19 ETS guidelines regarding wearing face coverings and maintaining six feet of distance for fourteen days following the close contact.
Tests for COVID-19 Cases
The guidance states that “[e]mployers may require employees [to] submit to viral testing for COVID-19.” The guidance does not address the relationship, if any, between the requirements for viral tests and antigen tests.
It is likely that more questions will emerge regarding employer obligations under the readopted COVID-19 ETS and the revised CDPH guidelines, which may prompt Cal/OSHA to continue to revise its FAQs in an effort to clarify issues.
Employers may be interested in template forms and documents to assist with Cal/OSHA COVID-19 ETS compliance.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic, including Cal/OSHA’s COVID-19 ETS. When Cal/OSHA makes a new proposal to the Occupational Safety and Health Standards Board, we will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on the California and Workplace Safety and Health blogs. Important information for employers is also available via the firm’s webinar and podcasts programs.
For more information on this development, please join us for our upcoming webinar, “Cal/OSHA’s FAQ Update: Where Are We Now?,” which will take place on Tuesday, February 1, 2022, from 2:00 p.m. to 3:00 p.m. EST. The speakers, Charles Thompson, Karen Tynan, and Robert Rodriguez, will discuss employer obligations under the updated California ETS as well as best practices for dealing with COVID-19 in the workplace. Register here.
