December 3, 2021

Volume XI, Number 337

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Cal/OSHA Proposes to Expand COVID-19 Emergency Temporary Standards Through April 2022

Since the drama in passing the amended COVID-19 Emergency Temporary Standards (ETS) in June, the Cal/OSHA Board has been relatively quiet, though discussing a more permanent COVID-19 Standard. In the meantime, federal OSHA took the spotlight with President Biden’s COVID-19 Action Plan.

Currently, the Cal/OSHA ETS is set to expire on January 14, 2022. But unlike the main character in Disney’s Frozen, it appears Cal/OSHA does not intend to let it go. Recently Cal/OSHA released a proposed second re-adoption of the ETS.

Under the proposal, much of the ETS would remain the same as the Standards passed in June. Here is a summary of the key updates proposed:

Exclusion from Worksite

Consistent with the current ETS, employers must still exclude employees who are positive for COVID-19 until return-to-work requirements are met. Employers also must exclude employees who have had close contact with a positive individual unless the employee is fully vaccinated and asymptomatic.

Currently, employees who have a close contact but are fully vaccinated and remain asymptomatic don’t need to be excluded from the workplace. Under the proposed amendments, these employees must now wear a face-covering in the workplace for 14 days, maintain social distance for 14 days, and get a COVID-19 test three to five days after the close contact in order to take advantage of the exception.

Return-to-Work Criteria

Under the proposed revisions, persons who had close contact, but never developed COVID-19 symptoms may return to work (1) 14 days after the last known contact, (2) 10 days after the last known contact if they wear a face covering and socially distance for 14 days after the close contact, or (3) 7 days after the last known close contact if the person tests negative for COVID-19 using a polymerase chain reaction (PCR) test with the specimen taken 5 days or later after the close contact and if the individual wears a face covering and socially distances from others for 14 days after the close contact.

Persons who had close contact and developed COVID-19 symptoms can only return to work when (1) at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without using a fever-reducing medication, (2) COVID-19 symptoms have improved, and (3) at least 10 days have passed since the COVID-19 symptoms first appeared.

The proposed revisions would also remove the return-to-work exemptions for essential critical infrastructure during staffing shortages.

Outbreaks and Testing

Employers, under the proposed revisions, would need to test even vaccinated, asymptomatic employees in an outbreak setting. An outbreak under the ETS is defined as three or more employees testing positive for COVID-19 within an exposed group during a 14-day period.

Moreover, employers will be required to provide testing for all close contacts, including vaccinated employees.

Face Coverings

Though state and local guidance regarding face coverings has fluctuated since June 2021, the ETS guidance will remain mostly the same.

However, both vaccinated and unvaccinated employees must wear face-covering during screening.

The Standards Board has indicated that the face coverings requirements in the ETS are intended to be the minimum requirement, while state and local public health departments may make more stringent mandates.

If approved, the revisions to the ETS would go into effect on January 14, 2022, and remain in effect until April 14, 2022.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 298
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About this Author

Associate

Sean Paisan is Of Counsel in the Orange County, California, office of Jackson Lewis P.C. His practice focuses on workplace safety and health (OSHA), data privacy, and traditional employment matters, including litigation and counseling.  

Sean’s first exposure to OSHA regulations occurred during his undergraduate studies while working for a construction company that helped build Disney’s California Adventure. After attending law school and working for the Los Angeles County District Attorney’s Office and the United States...

949-885-5233
Sierra Vierra, Jackson Lewis Law Firm, Sacramento, Labor and Employment Litigation Attorney
Associate

Sierra Vierra is an Associate in the Sacramento, California, office of Jackson Lewis P.C. She represents management in civil litigation and administrative proceedings involving employment law matters, including discrimination, harassment, retaliation, wrongful termination, benefits, and a wide range of wage and hour issues. She litigates in federal and state courts, including class and representative actions, and represents employers in administrative proceedings. She also provides preventive advice and counsel on best practices.

...
916-288-3008
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