Cal-OSHA’s Standards Board Votes to Extend ETS With Key Changes

On December 16, 2021, Cal-OSHA’s Standards Board voted to extend the State’s Emergency Temporary Standards (ETS) with several key amendments in place.  The next step is for the amended ETS to undergo a legal review by California’s Office of Administrative Law. That said, the newly revised ETS is expected to become effective on January 14, 2022, when the current incarnation of the ETS expires, and last until April, 2022.  Cal-OSHA is considering a permanent regulation which would go into effect when the ETS expires.

The following summarizes the key amendments:

Allowable Face Coverings: Per the revised ETS, a cloth face covering may not let light pass through when held up to a light source. In addition, the amended ETS permits gaiters (which must have 2 layers) and face coverings with a clear plastic panel to be worn. Notably, California recently implemented universal masking indoors through January 15, 2022 (link).

Indoor Screening Safeguard: Consistent with the recent State requirement, all employees, regardless of vaccination status, will need to wear face coverings during indoor workplace symptom screenings under the amended ETS. Notwithstanding the new State indoor masking mandate, under the current ETS, this requirement only applies to unvaccinated employees.

No-Cost Testing: The amended ETS requires employers to offer no-cost COVID-19 testing, during paid time, to all employees who have had close contact with a COVID-19 case in the workplace and to all within the “exposed group” during an outbreak, regardless of vaccination status. An exception is made is for asymptomatic employees who recovered from COVID-19 in the past 90 days. The current version of the ETS does not require this testing to be offered to fully vaccinated, asymptomatic employees.

Exclusion from Work Exceptions and Requirements: Fully vaccinated employees who have had close contact with a COVID-19 case still do not need to be excluded from the workplace, provided they remain asymptomatic. This also applies to COVID-19 cases who returned to work and have been symptom-free for 90 days. However, in both instances, under the amended ETS, these employees must wear a face covering and maintain 6 feet of distance in the workplace for 14 days following the close contact.  Otherwise, under the newly amended ETS, close contacts and COVID-19 cases must still be excluded from the workplace and (unless their exposure is not work-related) they must still receive continued pay and benefits until they meet the applicable return to work requirements.

Return to Work Requirements: Under the amended ETS, employees who are asymptomatic close contacts may return to work after completing a 14-day quarantine period or as follows: (1) if 10 days have passed since the close contact and the employee wears a face covering and maintains 6 feet of distance from others for 14 days; or (2) if 7 days have passed since the close contact, the employee tested negative for COVID-19 using a COVID-19 test with the specimen taken at least 5 days after the close contact, and the employee wears a face covering and maintains 6 feet of distance from others while at the workplace for 14 days following the close contact.

AALRR will continue to monitor the status of COVID-19 restrictions statewide.  Employers should take care to comply with all local and State restrictions and guidelines.  If you have any questions regarding the ETS or what your organization may need to do to stay in compliance, including assistance with developing policies appropriate to your workplace and workforce, please contact the authors or your usual counsel at AALRR who can provide advice and counsel specific to your particular circumstances.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

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