CalOSHA Intends to Re-Adopt COVID-19 Prevention Emergency Temporary Standard and Create New Permanent Regulation

Cal/OSHA has proposed language for the second re-adoption of COVID-19 Prevention Emergency Temporary Standards (ETS). If approved by the Standards Board in December, this second re-adoption of the ETS would be effective from January 14, 2022 through April 14, 2022.  The proposal makes significant changes to the current ETS. In summary, they are:

  • During screening for employees, face coverings must be used for both vaccinated andunvaccinated employees.
  • If a case occurs in the workplace, the employer would now have to provide testing for allnon-symptomatic close contacts, including those who are vaccinated.
  • Exclusion of infected or exposed employees – If an employer does notexclude an employee, then the employer must now provide “information about any applicable precautions recommended by CDPH for persons with close contacts.”
  • Vaccinated workers (or those with natural immunity) who remain asymptomatic and are not excluded must now wear a face covering for 14 days after the close contact and maintain social distancing for 14 days, and get a COVID test 3-5 days after close contact.
  • Return to work – If an individual returns before 14 days, they must wear a face mask and maintain social distancing until 14 days have passed (if an employee returns after 7 days due to a negative PCR test, or 10 days, they must wear a face mask and maintain 6 feet distancing for the remaining 7 or 4 days, respectively).
  • In an outbreak, employers will be required to test even vaccinated individualsin the exposed group.
  • Housing/Transportation
    • Ventilation – ventilation must now be “maximized” to the extent that portable HEPA filtration must be used where no MERV 13 is present – “to the extent feasible, in allsleeping areas”.  Previously, this was only applied where “two or more residents [were] not fully vaccinated.”
    • All employee residents must be tested if there were 3 or more cases in their housing unit in a 14 day period.
    • Housing quarantine policies presentlyexclude asymptomatic vaccinated close contacts from being quarantined, but this exception is being removed.
    • In transit, all employees, regardless of vaccination status, must be provided with and wear face masks.

Separately, Cal/OSHA has convened an advisory committee to provide input on proposed permanent regulations to protect workers from COVID-19 hazards. The Advisory Committee met on September 24th to review the current draft proposal which would create a COVID-19 standard that would be subject to renewal or expiration after two years. It would replace the current Emergency Temporary Standards (ETS).

The proposed language significantly streamlines the existing ETS. Of note, the proposal eliminates the separate written COVID-19 Prevention Program. Instead, employers would be required to address COVID-19 through their Injury and Illness Prevention Program (IIPP). Additional requirements include providing testing to all employees with a close contact, regardless of vaccination status, except for recently recovered COVID-19 cases without symptoms. Under the current ETS, employers do not have to provide testing to fully vaccinated employees. Testing of symptomatic, unvaccinated employees would no longer be required. There would be no provision for exclusion pay, though excluded employees must still be given information about benefits. This would be left for the Legislature to address on a permanent basis.

We will continue to keep you updated as this process moves forward.

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