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The Latest Cal/OSHA Emergency Temporary Standards Update

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Over the weekend, Cal/OSHA updated its Frequently Asked Questions and Fact Sheets to provide guidance for employers on the recently revised COVID-19 Emergency Temporary Standards (ETS). The COVID-19 ETS applies to all places of employment with limited exceptions: for those work locations where there is only one employee who has no contact with other people, employees working from home (or their other chosen location over which the employer has no control), or employees covered by the Aerosol Transmissible Diseases regulation.

The FAQs and Fact Sheets clarify a few key points covered California employers need to know, including:

  1. Written COVID-19 Prevention Program. The COVID-19 ETS requires that employers develop a written COVID-19 Prevention Program or ensure its elements are included in the employer’s Injury and Illness Prevention Program. Given the frequent changes to the COVID-19 ETS, we recommend employers maintain their COVID-19 Prevention Program as a standalone document. Cal/OSHA has not yet updated its template COVID-19 Prevention Program, however, employers can expect this update in English and Spanish soon.

  2. Specific employee communications and workplace hazard identification obligations. The COVID-19 ETS requires that employers communicate with employees regarding a number of items, including: COVID-19 symptoms, possible close contacts, and possible COVID-19 hazards; best practices for preventing the transmission of COVID-19; respirator and face covering protocols; options for COVID-19 testing; and COVID-19-related benefits including paid leave and accommodations. Separately, employers must conduct site-specific evaluations, engage employees and their representatives in hazard identification and evaluation, and implement procedures to correct those identified hazards.

  3. Workplace COVID-19 case notification and follow-up. Consistent with the employer’s obligations under AB 685 (Potential Exposure Notice Requirements), an employer must determine when the COVID-19 case was last in the workplace, which employees may have been exposed, provide written notification of potential exposures, make COVID-19 testing available at no cost, and exclude COVID-19 cases as necessary in an outbreak setting.

  4. Isolation and quarantine guidance. Under the revised COVID-19 ETS, the required exclusion periods for employees with COVID-19 are now the same as the state Department of Public Health’s recommended isolation periods for positive COVID-19 cases. The COVID-19 ETS Fact Sheet on Isolation and Quarantine can be found here.

  5. Testing. The definition of “COVID-19 test” has been expanded to include self-administered and self-read tests if another means of independent verification of the results can be provided (e.g., a time-stamped photo of the results). The prior requirement that a self-administered test be observed by the employer or an authorized telehealth proctor has been removed.

  6. Face coverings. Face covering requirements are now the same for all employees regardless of vaccination status and are no longer required in all indoor locations. Note, the FAQs confirm that employers can have policies that are more protective than those required by the COVID-19 ETS. However, an accommodation must be made for those who cannot wear face coverings due to a medical or mental health condition or disability, who are hearing-impaired or communicating with a hearing-impaired person, or when an employee performs specific tasks which cannot be performed with a face covering.

This is not intended to be a complete summary of the revised COVID-19 ETS, or the accompanying FAQs. Further, the current FAQs and Fact Sheets still leave employers with outstanding questions such as the elimination of a bright line rule on exclusion for close contacts. Miller Nash attorneys remain ready to assist employers with any questions regarding drafting or implementing the required COVID-19 Prevention Plan.