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Volume XII, Number 146

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Cal/OSHA Releases New FAQs on COVID-19 Prevention ETS

On January 24, 2022, the California Division of Occupational Safety and Health (Cal/OSHA) released new guidance in the form of answers to frequently asked questions (FAQs) regarding the COVID-19 Prevention Emergency Temporary Standards (ETS) to further clarify employer obligations.

Cal/OSHA readopted an updated version of the COVID-19 ETS, which went into effect on January 14, 2022. Prior to the readoption of the COVID-19 ETS, Cal/OSHA confirmed that the California Department of Public Health’s (CDPH) isolation and quarantine recommendations, issued December 30, 2021, would replace the Cal/OSHA COVID-19 ETS quarantine and isolation periods.

The revised FAQs come on the heels of questions regarding employer obligations under the text of the COVID-19 ETS, when read in conjunction with the CDPH’s isolation and quarantine guidelines. The FAQs address a number of revisions, including the following:

Self-Administered Tests

An over-the-counter test may be permissible if self-administered and self-read, if the testing is “observed by the employer or an authorized telehealth proctor.” The FAQs further state that a test is independently confirmed if it is (1) “a proctored test that is supervised by a licensed, authorized telehealth provider via video proctoring, or by a point-of-care test provider”; (2) a test proctored by the employer, including by video; or (3) a test “that features digital reporting of date and time-stamped results.”

Tests Following Close Contact

Employees (unvaccinated or vaccinated and booster-eligible, but who have not yet received their booster doses) who were exposed to someone with COVID-19 under Table 2 of the guidance  and who are unable to test on day five must quarantine for ten days. Employees (boosted or vaccinated but not yet booster-eligible) who were exposed to someone with COVID-19 under Table 3 of the guidance and who  are unable to test on day five must follow COVID-19 ETS guidelines regarding wearing face coverings and maintaining six feet of distance for fourteen days following the close contact.

Tests for COVID-19 Cases

The guidance states that “[e]mployers may require employees [to] submit to viral testing for COVID-19.” The guidance does not address the relationship, if any, between the requirements for viral tests and antigen tests.

It is likely that more questions will emerge regarding employer obligations under the readopted COVID-19 ETS and the revised CDPH guidelines, which may prompt Cal/OSHA to continue to revise its FAQs in an effort to clarify issues.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 26
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About this Author

Karen Tynan, employment lawyer, Ogletree Deakins
Of Counsel

Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

918 840 3150
Jennnifer Yanni Labor & Employment Attorney Ogletree Deakins Law Firm
Associate

Jennifer Yanni has spent the entirety of her legal career litigating labor and employment issues. She began her practice representing plaintiffs against national corporations and second-chaired an arbitration that resulted in a six-figure award in a rare reverse-discrimination suit. For the past five years, she has represented employers on a wide range of labor and employment issues. She has defended employers in a variety of industries in cases involving discrimination on the basis of race, sex, and disability; wage and hour disputes involving claims of unpaid overtime...

714-800-7900
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