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Cal/OSHA Revised Guidance Effective January 14, 2022

Cal/OSHA revised its Emergency Temporary Standards (“ETS”) following its mid-December meeting and, more recently, made additional revisions to align with the California Department of Public Health’s recommendations.  We summarize the substantive changes below:

1. COVID Cases in the Workplace: Employers must continue to monitor and provide notice of positive COVID-19 cases in the workplace to potentially impacted employees and independent contractors. Employers should disseminate these notices regarding COVID-19 cases via the employer’s normal practices for communicating employment-related issues and they should send them to all employees, independent contractors, and other employers who were at the same worksite as the COVID-19 case.

  • Note that the definition of “worksite” has been updated to exclude “locations where the worker worked by themselves without exposure to other employees, or to a worker's personal residence or alternative work location chosen by the worker when working remotely.” 

2. Face Coverings: If an individual cannot wear a face covering (as that term is now defined below) because of a medical disability or condition, they should wear a “non-restrictive alternative such as a face shield with a drape.”  If they cannot wear a non-restrictive alternative, they must social distance and either be fully vaccinated or be tested at least weekly during paid time and without cost to the employee.

3. Testing:

a. Employers are now required to make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before the “close contact” with a COVID-19 case occurred, even if the employee is asymptomatic (fully vaccinated employees were previously excluded from the testing requirements).    

b. Employers must now make weekly testing (for outbreaks) or twice-weekly testing (for major outbreaks) available to asymptomatic fully vaccinated employees in the exposed group (fully vaccinated employees were previously excluded from the testing requirements).

i. An “outbreak” is defined as a situation where, within a 14 day period, 3 or more employees in an exposed group test positive for COVID-19 and have visited the workplace during their high risk exposure period.

ii. A “major outbreak” is defined as a situation where, within a 14 day period, 20 or more employees in an exposed group test positive for COVID-19 and have visited the workplace during their high risk exposure period.

iii. “Exposed group” means all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period. A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.

4. Exclusions:

a. Isolation: Employees who test positive for COVID-19, regardless of vaccination status, previous infection, or lack of symptoms, must isolate for at least 5 days.

i. COVID-19 cases who tested positive and have symptoms: 

1. If symptoms are resolving and the employee tests negative after Day 5 from the date of the positive test, the employee may return to the workplace after Day 5 but must wear a face covering until after Day 10.

2. An employee who does not get tested after Day 5 may return to the workplace after Day 10 if their symptoms are resolving. 

3. Notwithstanding the foregoing, employees who have a fever of 100.4 or higher are not permitted to return to the workplace until after they have been fever-free for 24 hours without the use of fever reducing medications.

4. Employees whose symptoms (other than fever) are not resolving are not permitted to return to the workplace until either (i) their symptoms (other than fever) are resolving or (ii) at least 10 days have passed since the positive test.

ii. COVID-19 cases who tested positive but never developed symptoms:

1. If the employee tests negative after Day 5, the individual may return to the workplace after Day 5 but must wear a mask until after Day 10.

2. An employee who does not get tested after Day 5 from the date of the positive test may return to the workplace after Day 10. 

b. Quarantine: Asymptomatic employees who come into close contact with a COVID-19 case may be excluded from the workplace under certain circumstances. 

i. Asymptomatic, unvaccinated close contacts:

1. May return to the workplace after Day 5 from the date of the last close contact if: (i) the employee tests negative as a result of a specimen collected after Day 5 and (ii) the employee wears a face covering around others until after Day 10.

2. Asymptomatic employees who do not get tested may return to the workplace after Day 10.

ii. Asymptomatic close contacts who are vaccinated and booster eligible but have not yet received their booster dose may return to the workplace if:

1. A negative diagnostic test is obtained within 3-5 days after last exposure; and

2. The employee wears a face covering around others until after Day 10.

iii. Asymptomatic close contacts who are either boosted or are vaccinated and not booster eligible are not required to quarantine if they test negative after Day 5 and wear a face covering around others until after Day 10.

1. If the employee cannot be tested, the employee can return to the workplace but must wear a face covering and social distance until after Day 14.

iv. Notwithstanding the foregoing:

1. If the employee develops symptoms, they will not be permitted to return to the workplace until they receive a negative COVID-19 test result.

2. Any employee who tests positive must following the “isolation” procedures outlined above.

5. Definitions: OSHA revised certain definitions to align with the Federal OSHA definitions.

a. “COVID-19 test” now includes specific instructions for workers using a test at home with self-read results. It must be cleared, approved, or authorized by the FDA, administered per the instructions, and not self-administered and self-read unless observed by the employer or an authorized telehealth proctor.

b. “Face coverings” was updated to include more specific and highly detailed list of different types of acceptable face coverings. It now means, in summary:

A. Surgical or medical masks, or double-layered tightly-woven fabric covering both the nose and mouth.

B. “Face covering” specifically does not include: scarves, ski masks, balaclavas, or other single-layer or loose fabrics.

 c. “Fully vaccinated,” now mentions the minimal amount of time workers need to wait between the first and second shot of a two-dose vaccine by including a reference to the “minimum recommended interval between doses.” It does not include booster shots. 

These revisions will take effect on January 14, 2022.  Keep in mind, however, that employers still must comply with the remaining provisions of the ETS (discussed here), including the obligation to prepare a written COVID-19 Prevention Plan.  And, the California indoor masking requirement (regardless of vaccination status) remains in place—and has in fact been extended to February 15, 2022. 

As always, check back as we continue to monitor all local, state, and federal guidance on COVID-19 compliance measures.

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Authors

Mintz attorney Nicole M. Rivers defends employers in employment litigation and labor matters and advises on employment best practices. She handles cases involving claims of wage and hour violations, harassment, retaliation, discrimination, breach of employment agreements, FMLA violations, and violations of California's Private Attorneys General Act (PAGA), Family Rights Act (CFRA), and Fair Employment and Housing Act (FEHA).

Paul M. Huston

Associate

Paul M. Huston is an attorney in Mintz's employment labor and benefits practice group, where he litigates employment and general commercial issues. Paul has experience handling single plaintiff and class action lawsuits, covering issues from wrongful termination to disability discrimination.
Jennifer B. Rubin is a Mintz Member who advises clients on employment issues like wage and hour compliance. Her clients range from start-ups to Fortune 50 companies and business executives in the technology, financial services, publishing, professional services, and health care industries.