On December 16, 2021, the Cal/OSHA Standard Board voted to readopt and update the COVID-19 Emergency Temporary Standard (“ETS”). The new ETS will take effect on January 14, 2022, and end 90 days later (although Governor Newsom’s executive order from December 16, 2021, allows an additional extension through December 31, 2022).

Many of the changes to the ETS reflect the fact that fully vaccinated individuals are now more frequently becoming infected with COVID-19.

Here is a summary of what’s new:

• Employers must provide a potential COVID-19 exposure notice to “all employees who were on the premises at the same worksite as the COVID-19 case during the high-risk exposure period.” The notice may be delivered using whatever means the employer generally uses to communicate with employees. The “worksite” does not include locations where the individual worked alone, or to a worker’s personal residence or alternative remote work location.
• If an employer conducts COVID-19 screening indoors, all screeners and employees must wear masks, even if they are vaccinated.
• “Face coverings” must now pass a “light test”—that is, they cannot allow light to pass through when held up to a light source. They also must fit snuggly over the nose, mouth, and chin.
• Asymptomatic fully vaccinated employees still do not need to be excluded following a close contact, but now only if they wear a face covering and maintain six feet of distance from others for 14 days after the close contact. The same requirement applies to employees who are not excluded following a close contact because they have natural immunity. In both situations, employers must provide the employee with information about any applicable precautions recommended by CDPH for persons with close contacts.
• Employees who had a close contact but never developed symptoms may return to work after 14 days unless: (1) 10 days have passed since the close contact and the person wears a face covering and maintains six feet of distance from others for 14 days; or (2) seven days have passed since the close contact, the person tests negative at least five days after the close contact, and the person wears a face covering and maintains six feet of distance from others for 14 days.
• Employers must make post-exposure COVID-19 testing available to asymptomatic fully vaccinated employees.
• Although home COVID-19 tests are permissible, the employer or an authorized telehealth provider must observe the testing in real time.
• If an employer faces multiple COVID-19 infections or a COVID-19 outbreak, it must make COVID-19 testing available to all employees in the exposed group, even if they are fully vaccinated and asymptomatic.
• Employers that provide housing and/or transportation to employees must now test all employees if there are three more COVID-19 cases at the residence in 14 days, and quarantine even fully vaccinated asymptomatic residents following a close contact. In addition, employers must provide face coverings to all employees, even if they are not fully vaccinated.

Also, as a result of the ETS readoption, California employees covered by the ETS will continue to be entitled to “exclusion pay” (i.e., compensation if they are exposed to COVID-19 at work and do not become infected, but must remain off work).

We expect FAQs soon.  Stay tuned.

Here is a link to the new ETS: https://www.dir.ca.gov/oshsb/documents/Dec162021-COVID-19-Prevention-Emergency-txtcourtesy-2nd-Readoption.pdf

Here is a link to the Governor’s Executive Order:  https://www.gov.ca.gov/wp-content/uploads/2021/12/12.16.21-ETS-Readoption-and-Shareholder-Meeting-EO.pdf