Key Takeaways:

• The California Division of Occupational Safety and Health (Cal/OSHA) Standards Board readopted its emergency COVID-19 workplace safety regulations that will remain in effect through December 31, 2022.

• The readopted COVID-19 Emergency Temporary Standards (ETS) make some significant changes to the current version of the ETS, and employers should look to update their COVID-19 prevention plans to maintain compliance with these new standards.

• These changed requirements will lead to changed practices for California employers.

On April 21, 2022, the California Division of Occupational Safety and Health (Cal/OSHA) Standards Board readopted its COVID-19 Emergency Temporary Standards (ETS), due to an Executive Order previously signed by Gov. Newsome, which first went into effect on November 30, 2020. The new version of ETS will replace the current version on May 6, 2022, and will be in effect until December 31, 2022. The ETS apply to all employees not covered by Cal/OSHA’s Aerosol Transmissible Disease Standard or employees working alone or at home, and require employers to establish, implement, and maintain a COVID-19 Prevention Program, among other things.

While much of the current ETS will remain unchanged, there are some significant changes that California employers must be aware of. Employers should review current California Department of Public Health (CDPH) guidance and develop, implement, and maintain effective policies and procedures to adequately evaluate existing COVID-19 prevention controls at the workplace and the need for different or additional controls to prevent or reduce the risk of transmission of COVID-19.

California employers should note the revisions highlighted below.

Exclusion Pay

The exclusion pay requirement remains the same. Employers will continue to have to pay employees who have been excluded from work unless an exception applies.

Investigating and Responding to COVID-19 Cases

When there has been a COVID-19 case at the place of employment, employers must make COVID-19 testing available at no cost, during paid time, to all employees in the exposed group immediately upon being covered.

Testing of Symptomatic Employees

Employers are required to make COVID-19 testing available at no cost to employees with COVID-19 symptoms during employees’ paid time. Testing must be made available to all employees in the exposed group immediately upon being covered by this section, and then again one week later.

COVID-19 Testing

A COVID-19 test taken for return-to-work purposes may be both self-administered and self-read, but only if another means of independent verification of the results can be provided—such as a time-stamped photograph of the results.

Social Distancing

Social distancing is no longer required. Meaning, employees are not required to maintain six feet of social distance from others or be tested weekly.

Fully  Vaccinated

The definition of “fully vaccinated” has been deleted. Prior distinctions in the current readopted ETS between fully vaccinated and non-fully vaccinated people have been removed throughout the upcoming readopted ETS. However, you should keep in mind that vaccination status may still be relevant for other purposes, including under local public health orders.

Respirator Requests

Employees have the right to request respirators for voluntary use, irrespective of vaccination status, without fear of retaliation and at no cost to employees.

Mask Requests

Employees can request face coverings from the employer at no cost to the employee and can wear them at work, regardless of vaccination status, without fear of retaliation.

Face Coverings

The definition of “face coverings” has been amended to eliminate the requirement that light does not pass through the mask when it is held up to a light source. Additionally, face coverings are no longer mandatory for unvaccinated workers.

Employers shall provide face coverings and ensure they are worn by employees when required by order from CDPH.

Employees exempted from wearing face coverings due to a medical condition, mental health condition, or disability shall wear an effective, non-restrictive alternative such as a face shield with a drape on the bottom if their condition or disability permits it. If their condition or disability does not permit a non-restrictive alternative, such employees shall be tested at least weekly for COVID-19 during paid time and at no cost to the employee.

Cleaning and Disinfection

Employers will no longer be required to implement specified cleaning and disinfection procedures.

Training and Instruction

Employers are required to provide effective training and instruction to employees on the topics described in the readopted ETS.

California employers should update their COVID-19 prevention plans to maintain compliance with these new standards.

If you have any questions about these changes or how they impact  your business, please contact:

• Sara Bagheri
• Stephen C. Mazzara
• Kristin Klein Wheaton
• Caroline J. Berdzik
• Or another member of our Employment and Labor team