Last month, California’s Occupational Safety and Health Standards Board (“OSHSB”) readopted and revised the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (“ETS”). By and large, OSHSB’s revised ETS retain most of the key requirements of the prior version, which had last been updated last June (as we reported here). However, the revised ETS, which will take effect on January 14th, also aim to conform the existing rules to the latest requirements and recommendations from the California Department of Public Health (“CDPH”). We have summarized some of the more notable updated provisions below:
- Clarified Exposure Notification Obligations. The revised ETS clarify the required procedures for employers to notify employees who were potentially exposed to COVID-19 at work. Employers are now required to provide a readily-understandable, written notification that the employee may have been exposed within one business day of the exposure, without revealing any personally identifying information of the underlying COVID-19 case. Employers may notify workers via personal service, email, text message, or any other method that ensures receipt within the one business day deadline.
- Expanded Testing Requirements for Exposed Employees. Employers must also provide COVID-19 testing at no cost to employees during paid time to all employees who had a close contact with a COVID-19 case in the workplace—including to fully vaccinated and asymptomatic employees, which is a departure from the prior version of the ETS. However, employers are not required to provide testing during paid time to employees who have returned to work following a confirmed COVID-19 case and who remained free of COVID-19 symptoms.
- New Exceptions to Exclusion Rules for Some Employees. The updated ETS purport to revise the exclusion rules for employees who had a “close contact” with a COVID-19 case in the workplace; however, as explained below, the updated ETS’s timeframes are not controlling requirements. The updated ETS provide that exposed employees who never developed symptoms may return to work: (1) 14 days after the last known close contact; (2) 10 days since the last known close contact if the employees wear a face covering and maintain six feet of social distance from other employees until 14 days have passed since the contact; or (3) seven days after the last known close contact if the employees test negative for COVID-19 with a specimen taken at least five days after the last known close contact, and so long as such employees wear face coverings and socially distance for 14 days. Similarly, the revised ETS provide that asymptomatic employees who recovered from COVID-19 within the last 90 days do not need to be excluded from work following a close contact if they wear a face covering and socially distance for 14 days.
Adding additional confusion into the mix is Governor Newsom’s Executive Order N-84-20 from December 14, 2020, which states that where the quarantine and isolation periods required by the ETS are longer than what is required by the CDPH’s isolation and quarantine guidance, the CDPH guidance prevails. Thus, notwithstanding the revised ETS language, the CDPH’s guidance controls. The latest CDPH guidelines on quarantine and isolation mandate that:
- Employees who test positive should isolate for at least five days, regardless of vaccination status, previous infection, or lack of symptoms. They may end isolation after five days if they have no symptoms or resolving symptoms and they test negative on the fifth day following exposure. Otherwise, they must isolate for ten days.
- Unvaccinated employees who are exposed to COVID-19 must stay home for five days, and can end isolation if they are asymptomatic and test negative on the fifth day (but must continue to wear a face covering for ten days following initial exposure). Otherwise, they must isolate for ten days.
- Exposed employees who are vaccinated and booster-eligible but who have not yet received their booster shot can end isolation if they are asymptomatic and test negative three to five days from exposure (but must continue to wear a face covering for ten days following initial exposure). Otherwise, they must isolate for ten days.
- Exposed employees who are boosted or who are vaccinated and not yet eligible for a booster (i.e., “up to date” employees) are advised to test on their fifth day following exposure and, if they remain asymptomatic, are not required to isolate so long as they continue to wear a face covering for ten days following exposure.
Employers should familiarize themselves with the changes and make sure they are ready to implement the new requirements. Cal/OSHA likely will issue updated guidance in the coming weeks.