February 5, 2023

Volume XIII, Number 36

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February 03, 2023

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February 02, 2023

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California’s COVID-19 Regulations Extended Through April

California’s Second Readopted COVID-19 Emergency Temporary Standard (ETS) is now in effect and will remain in place through April 14, 2022. In general, the ETS retains many of the central provisions of the earlier versions. However, there are several key changes that may impact employers:

Quarantine: The ETS includes quarantine provisions for positive cases and close contacts that could require exclusion for up to fourteen days, depending on the circumstances. However, the Governor’s December 2020 Executive Order N-84-20 provided that the isolation and quarantine periods in the ETS (also called “exclusion periods”) would be overridden by “any applicable isolation or quarantine recommended by” the California Department of Public Health (CDPH) if the periods in the ETS are longer than those recommended by the CDPH. Since the ETS was readopted, CDPH has updated its guidance to be consistent with the new CDC guidance, thereby imposing shorter quarantine periods than the ETS. In recently issued FAQs, CalOSHA confirmed that the new isolation and quarantine recommendations from CDPH replace the ETS’s exclusion periods. The FAQs provide a table outlining the applicable exclusion periods for positive cases and close contacts. In many cases, the exclusion period is now five days.

Test type: The Second Readopted ETS defines a qualifying COVID-19 test as excluding those that are “both self-administered and self-read.” This provision eliminates at-home tests for use in meeting the ETS’s provisions regarding testing, such as making tests available during outbreaks, unless those tests can be observed by the employer or an authorized telehealth proctor.

Testing for vaccinated employees: The prior rules allowed employers to exclude fully vaccinated workers from testing offers following outbreaks. The new rules no longer allow that exclusion, and testing must be made available to everyone in the exposed group regardless of vaccination status.

Face covering type: The revisions specify that face coverings must not let light pass through when held up to a light source, must not have slits, and must not have large gaps outside of the face. At the December 16, 2022, Cal/OSHA Standards Board Meeting, Board members and members of the public expressed concern that N-95 respirators may not pass the light test. As such, Board members requested Cal/OSHA address this concern through FAQs. The FAQs do not yet address this potential issue.

Mask requirements: The latest guidance from the California Department of Public Health on January 5, 2022, requires face coverings in all indoor public settings, regardless of vaccination status, through February 15, 2022. In addition, the Second Readopted ETS requires face coverings for all unvaccinated personnel.

Looking Forward

Under normal procedures, emergency temporary standards may only be readopted twice. However, on the same day that the Second Readopted ETS was issued, Governor Newsom issued an Executive Order permitting a Third Readoption of the ETS, as long as its effective date does not go past December 31, 2022. As a result, the Cal/OSHA Standards Board may begin to consider formulating and adopting a third ETS.

In addition, the Standards Board is also continuing to consider adoption of a permanent standard for COVID-19. At the December 16 meeting, the Board solicited comment on whether a permanent standard, standalone aerosol standard, or action through existing IIPP processes would be most appropriate. At that meeting, Cal/OSHA stated that it intends to publish a new proposed permanent standard before the next meeting on January 20, 2022, although that topic does not appear on the current agenda for the January 20 meeting.

The Standards Board’s decisions on both fronts may also be influenced by the Supreme Court’s issuance of a stay on the federal OSHA emergency temporary standard, which would have required employers with more than 100 employees to ensure that all employees were either fully vaccinated or tested twice weekly. Without the federal mandate in place, the Standards Board may also begin to consider state-level vaccination requirements.

© 2023 Beveridge & Diamond PC National Law Review, Volume XII, Number 14

About this Author

Deepti B. Gage Business Litigation Law Clerk Beveridge & Diamond Washington, DC

Deepti’s business and economics background informs her understanding of the numbers involved in legal matters, whether related to business decisions or litigation.

Deepti was a summer associate with B&D in 2019 and re-joined the firm in November. She assists with FIFRA research and other related assignments. Her interest in law began as an undergraduate while studying abroad in Costa Rica, working with an indigenous group called the Boruca. Her international experience focuses on the circular economy and she continues to build expertise in...

Jessalee L. Landfried Litigation Attorney Beveridge & Diamond Washington, DC

Jessalee maintains a general regulatory and litigation practice, with a particular focus on air, climate, subsurface contamination, and environmental compliance assessments.

Jessalee L. Landfried regularly counsels clients in the energy, tech, and automotive sectors on a variety of programs and compliance issues arising under the Clean Air Act, RCRA, and the Clean Water Act. In addition to her regulatory practice, she represents clients in litigation arising under a broad range of federal and state environmental statutes, including environmental class action suits...

Jayni A. Lanham Environmental, Health, & Safety Attorney Beveridge & Diamond Baltimore, MD

Jayni draws on her experience with environmental, health, and safety (EHS) regimes to help clients assess risk, develop compliance strategies, and build strong legal and technical cases when faced with litigation or enforcement.

Jayni counsels companies in a variety of industries on regulatory compliance and represents them in litigation and enforcement proceedings related to a broad range of federal and state EHS laws. Jayni is a leader of Beveridge & Diamond’s Occupational Safety and Health group and has significant experience advising clients on compliance...

Kaitlyn D. Shannon Environmental Enforcement & Litigation Attorney Beveridge & Diamond San Francisco, CA

Kaitlyn Shannon focuses her practice on environmental enforcement and litigation across a range of industries and issues.

She is an experienced environmental litigator and regularly appears in California state and federal courts, and she is the deputy leader of the firm’s Litigation practice group. She has experience with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), including defending against natural resource damages claims. She is also well-versed in California state-law claims, including California’s Superfund program,...