Cal/OSHA Readopts and Updates the Emergency Temporary Standards and the California Department of Public Health Issues New Isolation and Quarantine Guidance

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PORTIONS NO LONGER IN EFFECT, REPLACED BY THIRD READOPTION OF THE ETS

On Dec. 16, 2021, Cal/OSHA updated the Emergency Temporary Standards (ETS) in its second readoption of the statute (Revised ETS). The updates are effective Jan. 14, 2022.

On Dec. 16, 2021, Gov. Gavin Newsom issued an Executive Order permitting a third readoption of the emergency standards, as long as they don't extend beyond Dec. 31, 2022. See https://www.gov.ca.gov/wp-content/uploads/2021/12/12.16.21-ETS-Readoption-and-Shareholder-Meeting-EO.pdf. Employers can expect the ETS to be readopted one more time before becoming permanent at the end of 2022.

Cal/OSHA reminds employers that in addition to adhering to the revised ETS, they also must follow public health orders, including the California Department of Public Health (CDPH) guidance. Moreover, the revisions regarding isolation, quarantine, and return-to-work criteria automatically update to reflect guidance issued by the CDPH. The updated revised ETS are here.

Mandates that Remain the Same in the Revised ETS

Employers must establish, implement, and maintain an effective written COVID-19 prevention program. It includes:

• identifying and evaluating employee exposures to COVID-19 health hazards;
• implementing effective policies and procedures to correct unsafe and unhealthful conditions;
• allowing adequate time for handwashing and frequent cleaning of touched surfaces and objects.

Employers must provide training and instruction to employees on how COVID-19 is spread, infection prevention techniques, and information regarding benefits related to COVID-19 that affected employees might be entitled to under applicable federal, state, or local laws.

Employers must exclude employees who have COVID-19 symptoms and/or are not fully vaccinated and have had a close contact with someone from the workplace and, if that contact is work related, ensure continued wages.

When there are multiple COVID-19 infections and COVID-19 outbreaks, employers must test and notify public health departments of workplace outbreaks (three or more cases in an exposed workgroup in a 14-day period) and major outbreaks (20 or more cases within a 30-day period). During any outbreak, face coverings are required regardless of employee vaccination status. They are always required indoors and are required outdoors when employees are less than 6 feet from another person. During major outbreaks, 6-feet physical distancing is required where feasible, both indoors and outdoors.

COVID-19 testing is required for employees who are not fully vaccinated and might have been exposed. Employers must offer COVID-19 testing at no cost during paid time to their employees who are not fully vaccinated and had potential exposure to COVID-19 in the workplace, and provide them with information on benefits.

Employers must contact the local health department immediately but no longer than 48 hours after learning of three or more COVID-19 cases to obtain guidance on preventing further spread of COVID-19 within their workplace.

Employers must maintain accurate records and track all COVID-19 cases while ensuring that medical information remains confidential. The records must be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed. When a serious illness or death related to COVID-19 occurs, the employer must report it immediately to the nearest Cal/OSHA enforcement district office.

New Revisions to the ETS

Testing for All Employees Post-Close Contact or in an Exposed Group Regardless of Vaccination Status

The revised standards require employers to provide testing to all employees, including those fully vaccinated, who were in close contact with an infected person or in an exposed group, regardless of symptom status. Employers must offer and pay for testing, and pay for the time it takes to test. The only exceptions to close-contact testing are employees who recovered from COVID-19 in the past 90 days and are asymptomatic.

Recall that Cal/OSHA previously exempted fully vaccinated employees who were not experiencing COVID-19 symptoms from its close contact/exposed group testing requirements.

Testing Protocols Adopted from the Federal Emergency Temporary Standard (OSHA ETS)

The second revised California ETS adopted language from the OSHA ETS, which allows tests with specimens processed by a laboratory, proctored over-the-counter tests, point-of-care tests, and tests for which specimen collection and processing is done or observed by an employer. The revised standards now clarify that tests may not be self-administered and self-read unless the employer observes or authorizes a telehealth proctor.

Face Coverings Must Pass the Light Test

Face coverings must pass the “light test;” that is, light does not pass through the mask when held up to a light source. The revised ETS also define a face covering as a solid piece of material without slits, visible holes or punctures. It must fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. Permissible face coverings include surgical masks, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or nonwoven material of at least two layers.

The revised standards include guidance on how to accommodate employees with disabilities that affect their ability to wear face coverings. Employers must ensure that employees are at least 6 feet apart from all other persons if their condition or disability does not permit a face covering alternative (e.g., a face shield), and that they either be fully vaccinated or subject to weekly testing at no cost to the employee.

Updated Isolation, Quarantine, and Return-to-Work Guidance

The revisions initially included more stringent isolation and quarantine guidelines, but the guidelines automatically were updated to match those promulgated by the CDPH. The chart below summarizes the required isolation and quarantine periods.

On Dec. 27, 2021, the Centers for Disease Control and Prevention (CDC) shortened the recommended isolation and quarantine requirements. See https://www.cdc.gov/media/releases/2021/s1227-isolation-quarantine-guidance.html

On Dec. 30, 2021, the CDPH updated guidance on isolation and quarantine requirements to better align with that of the CDC. The CDPH guidance is here.

The CDPH and the revised Cal/OSHA ETS now recommend these isolation and quarantine periods:

• Positive COVID-19 case, regardless of vaccination status:
  • The employee must isolate for five days. If symptoms are gone or are resolving after five days and a diagnostic specimen collected on day five or later tests negative, isolation may end but a mask should be worn around others for five more days.
  • If the employee is unable to test or chooses not to test, and symptoms are not present or resolving, isolation may end after day 10.
  • If the employee has a fever, he or she should isolate until it resolves.
  • If symptoms other than fever are not resolving, the employee should isolate until they do, or until after day 10.
  • A mask should be worn in the presence of others for 10 days, especially indoors.
• For employees exposed to or in close contact with a positive COVID-19 case who have been boosted OR vaccinated but are not yet booster-eligible:
  • No quarantine is required.
  • Test on day five.
  • Wear a mask in the presence of others for 10 days, especially indoors.
  • If testing positive, follow isolation recommendations above.
  • If symptoms develop, test and stay home.
• For employees who are exposed to or in close contact with a positive COVID-19 case who are unvaccinated or vaccinated and booster eligible but haven’t received their booster dose (including people previously infected with COVID-19 within the last 90 days):
  • Stay home for at least five days after the last contact with a person who is positive for COVID-19.
  • Test on day five.
  • Quarantine may end after day five if symptoms aren’t present and a diagnostic specimen collected on day five or later tests negative.
  • If unable to test or choosing not to test, and symptoms aren’t present, quarantine may end after day 10.
  • If testing positive, follow isolation recommendations above.
  • If symptoms develop, test and stay home.

The CDPH's chart depicts the isolation and quarantine guidelines. See also https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx

Persons Who Test Positive for COVID-19 (Isolation)

Recommended Action

Everyone, regardless of vaccination status, previous infection or lack of symptoms

Stay home for at least 5 days. Isolation may end after day 5 if symptoms are not present or are resolving and a diagnostic specimen* collected on day 5 or later tests negative. If unable to test or choosing not to test, and symptoms are not present or are resolving, isolation may end after day 10. If fever is present, isolation should be continued until fever resolves. Wear a well-fitting mask around others for a total of 10 days, especially in indoor settings (see section below on masking for additional information). *Antigen test preferred

Persons Who are Exposed to Someone with COVID-19 (Quarantine)

Recommended Action

Unvaccinated** OR Vaccinated and booster-eligible** but have not yet received their booster dose **Includes persons previously infected with SARS-CoV-2, including within the last 90 days See Appendix below for definition of booster eligible

Stay home for at least 5 days, after the last contact with a person who has COVID-19. Test on day 5. Quarantine may end after day 5 if symptoms are not present and a diagnostic specimen collected on day 5 or later tests negative. If unable to test or choosing not to test, and symptoms are not present, quarantine may end after day 10. Wear a well-fitting mask around others for a total of 10 days, especially in indoor settings (see section below on masking for additional information) If testing positive, follow isolation recommendations above. If symptoms develop, test and stay home.

Persons Who Are Exposed to Someone with COVID-19 (No Quarantine)	Recommended Action
Boosted OR Vaccinated, but not yet booster-eligible See Appendix below for definition of booster-eligible	Test on day 5. Wear a well-fitting mask around others for 10 days, especially in indoor settings (see section below on masking for additional information). If testing positive, follow isolation recommendations above. If symptoms develop, test and stay home.

We expect Cal/OSHA and the CDPH to continue modifying guidelines as circumstances change. Check back regularly for updated guidance.

Appendix: California COVID-19 Vaccines Booster Recommendations

COVID-19 vaccine	Primary vaccination series	When does a person become booster-eligible	Which vaccine booster dose to receive
Moderna or Pfizer-BioNTech	1st and 2nd doses	6 months after 2nd dose	Any of the COVID-19 vaccines authorized in the U.S. may be used for the booster dose, but either Moderna or Pfizer-BioNTech is preferred.
Johnson and Johnson [J&J]/Janssen	1st dose	2 months after 1st dose	Any of the COVID-19 vaccines authorized in the U.S. may be used for the booster dose, but either Moderna or Pfizer-BioNTech is preferred.
World Health Organization (WHO) emergency use listing COVID-19 vaccine	All recommended doses	6 months after getting all recommended doses	Single booster dose of Pfizer-BioNTech COVID-19 vaccine
A mix-and-match series composed of any combination of FDA-approved, FDA-authorized, or WHO-EUL COVID-19 vaccines	All recommended doses	6 months after getting all recommended doses	Single booster dose of Pfizer-BioNTech COVID-19 vaccine

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