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Cal/OSHA Advances Proposed Temporary and Permanent COVID-19 Standards

On October 20, 2021 California’s Division of Occupational Safety and Health (Cal/OSHA) published the draft text for the proposed second re-adoption of its COVID-19 Emergency Temporary Standard (“proposed ETS”). The proposed ETS seeks to continue the current Emergency Temporary Standard (“current ETS”) that was effective as of June 17, 2021 with some key changes. The proposed ETS seeks to update requirements in light of the Delta variant and bring the current ETS in alignment with COVID-19 guidance issued by the California Department of Public Health. If adopted, the proposed ETS will be effective January 14, 2022 to April 14, 2022. Simultaneously, the agency is considering a proposed permanent standard that would retain many of the same provisions for at least a two-year period.

Summary of Key Changes under the Proposed ETS

The proposed ETS largely retains the same provisions as the current ETS, including local health department reporting and other protocols following an “outbreak” of three or more cases within an exposed group. However, Cal/OSHA is proposing several key changes that could impact California employers.

Screening: Under the proposed ETS, employees would be required to wear a mask during indoor daily health screenings regardless of vaccination status.

Employer-Provided Testing: The proposed ETS would require employers to provide free testing on paid time for all close contacts and all members of exposed groups following outbreaks, regardless of vaccination status or symptoms.

Exclusion Requirements for Asymptomatic Close Contacts: The proposed ETS includes a number of changes to the criteria for allowing asymptomatic close contacts to return to work. As the baseline requirement, asymptomatic close contacts may return to the workplace 14 days following the close contact. In addition, the proposed ETS would allow such close contacts to return to work earlier under certain circumstances:

  • Return to work 10 days after last close contact: Permitted if the close contact continues to wear a face covering and maintain physical distancing until 14 days have passed.

  • Return to work 7 days after last close contact: Permitted if the close contact obtains a negative PCR test taken at least five days after the last contact, and continues to wear a face covering and maintain physical distancing until 14 days have passed.

  • Return to work immediately: At their discretion, employers may allow fully vaccinated personnel to return to work immediately provided that they continue to wear a face covering and maintain physical distancing until 14 days have passed since the close contact, and get a COVID-19 test three to five days after the close contact. Employers may also allow personnel who had COVID-19 in the past 90 days to return to work immediately provided that they continue to wear a face covering and maintain physical distancing until 14 days have passed since the close contact.  Personnel permitted to return to work under these exceptions should be provided with information about any applicable precautions recommended by CDPH for persons with close contacts.

Future “Permanent” COVID-19 Standard

In tandem with the proposed ETS, Cal/OSHA is also considering a proposed “permanent” COVID-19 standard which, once finalized, would replace any ETS that is in place and last for at least two years. The major difference between the proposed permanent standard and the ETS is that the permanent standard does not include a requirement that employers continue to provide wages to personnel who have been excluded from the workplace. Cal/OSHA has not published any timeline regarding the expected finalization date for the proposed permanent standard.

© 2023 Beveridge & Diamond PC National Law Review, Volume XI, Number 302

About this Author

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,...

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...