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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On December 16, 2021, Cal/OSHA updated the Emergency Temporary Standards (ETS) in its second re-adoption of the statute (Revised ETS). The updates are effective January 14, 2022.

On December 16, 2021, the Governor issued an Executive Order permitting a third readoption of the ETS, so long as it doesn’t extend beyond December 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 must also follow public health orders, including the California Department of Public Health (CDPH) guidance. Moreover, the Revised ETS mandates regarding isolation, quarantine, and return to work criteria will automatically update to reflect guidance issued by the CDPH. The updated Revised ETS Fact Sheet can be found here.

Mandates that Remain the Same in the Revised ETS include the following:

• Employers must establish, implement, and maintain an effective written COVID-19 Prevention Program that includes:
  • Identifying and evaluating employee exposures to COVID-19 health hazards.
  • Implementing effective policies and procedures to correct unsafe and unhealthy conditions.
  • Allowing adequate time for handwashing and frequently clean touched surfaces and objects.
• Employers must provide effective training and instruction to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19-related benefits that affected employees may 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 from the workplace and, if that close contact is work related, ensure continued wages.
• When there are multiple COVID-19 infections and COVID-19 outbreaks, employers must follow the requirements for testing and notifying 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: 1) indoors and 2) outdoors when employees are less than six feet from another person. During major outbreaks, six-feet physical distancing is required where feasible, both indoors and outdoors.
• COVID-19 testing for employees who are not fully vaccinated and might have been exposed.
• Requires employers to 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.
• Notification requirements to the local health department
  • 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 the further spread of COVID-19 within their workplace.
• Recordkeeping and reporting COVID-19 cases
  • Employers must maintain accurate records and track all COVID-19 cases, while ensuring medical information remains confidential.
  • These records must be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed.
  • When a COVID-19-related serious illness or death occurs, the employer must report it immediately to the nearest Cal/OSHA enforcement district office.

Changes made to the newly Revised ETS include the following:

Provide Post-Close Contact or Exposed Group Testing to All Employees, Regardless of Vaccination Status

The Revised ETS requires that employers provide testing to all employees, including fully vaccinated employees in a close contact/exposed group, regardless of symptom status. This means employers must offer and pay for testing, and pay for the time it takes to test, for all employees in the exposed group or who are considered close contacts. The only exception 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 from the Federal Occupational Safety and Health Administration’s Emergency Temporary Standard (“OSHA ETS”) Adopted

The 2nd Revised 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 where specimen collection and processing is done or observed by an employer. The Revised ETS now clarifies 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,” which means that light does not pass through the mask when held up to a light source. The Revised ETS also defines a face covering as a solid piece of material without slits, visible holes or punctures, which 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 non-woven material of at least two layers.

The Revised ETS includes guidance on how to accommodate employees with disabilities that affect their ability to wear face coverings, including ensuring employees are at least six feet apart from all other persons if their condition or disability does not permit a face covering alternative (like a face shield) and that they either be fully vaccinated or subject to weekly testing at no cost to the employee.

Isolation, Quarantine and Return to Work Guidance Updated

The Revised ETS initially included more stringent isolation and quarantine guidelines but, the guidelines were automatically updated to match the guidelines promulgated by the CDPH. See below for a summary and easy to read chart on the required isolation and quarantine periods.

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

On December 30, 2021, the CDPH updated its guidance on isolation and quarantine requirements to better align with that of the CDC. The CDPH guidance can be found here.

The CDPH and the Revised ETS now recommend the following isolation and quarantine periods:

• Positive COVID case, regardless of vaccination status
  • Isolate for 5 days; if, after 5 days symptoms are gone or are resolving, and a diagnostic specimen collected on day 5 or later tests negative, isolation may end but a mask should be worn around others for 5 additional days.
  • If unable to test or choosing not to test, and symptoms are not present or resolving, isolation can end after day 10.
  • If fever is present, isolation should be continued until fever resolves.
  • If symptoms, other than fever, are not resolving continue to isolate until symptoms are resolving or until after day 10.
  • Wear a mask around others for a total of 10 days, especially indoors.
• Exposed or close contacts with a positive COVID case who have been boosted OR vaccinated but not yet booster-eligible
  • No quarantine required.
  • Test on day 5.
  • Wear a mask around others for 10 days, especially indoors.
  • If testing positive, follow isolation recommendations, above.
  • If symptoms develop, test and stay home.
• Exposed to or close contacts of a positive COVID case who are unvaccinated or vaccinated and booster eligible but haven’t received their booster dose. Includes people previously infected with COVID, including within the last 90 days.
  • Stay home for at least 5 days, after your last contact with a person who is COVID positive.
  • Test on day 5.
  • Quarantine can end after day 5 if symptoms aren’t present and a diagnostic specimen collected on day 5 or later tests negative.
  • If unable to test or choose not to test, and symptoms aren’t present, quarantine can end after day 10.
  • If testing positive, follow isolation recommendations above.
  • If symptoms develop, test and stay home.

The CDPH has prepared a useful chart to easily apply 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 can 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 can end after day 10. If fever is present, isolation should be continued until fever resolves. If symptoms, other than fever, are not resolving continue to isolate until symptoms are resolving or until 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) *Antigen test preferred.

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

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 to modify guidelines as circumstances change so check back regularly for updated guidance.

Appendix: California COVID-19 Vaccines Booster Recommendations

COVID-19 vaccine	Primary vaccination series	When does a person becomes 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 United States may be used for the booster dose, but either Moderna or Pfizer-BioNTech are preferred.
Johnson and Johnson [J&J]/Janssen	1st dose	2 months after 1st dose	Any of the COVID-19 vaccines authorized in the United States may be used for the booster dose, but either Moderna or Pfizer-BioNTech are 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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