Keenan Briefings

Briefing

CAL-OSHA Adopts 3rd COVID-19 ETS

On April 21, 2022, Cal-OSHA approved the third readoption of the Emergency Temporary Standard (ETS), by a 6-1 vote and they are in the process of updating their FAQs soon to clarify some of the changes. This third ETS would be effective as of early May and will remain in effect until December 31, 2022. A public hearing will be required to make these regulations permanent, if this is what the Board pursues.

Cal-OSHA will be updating their model COVID-19 Prevention Program (CPP) and will be available by or shortly thereafter of the Office of Administrative Law (OAL) approval date sometime in May. The CPP should address the training requirements as well. Cal-OSHA will be offering webinars regarding the updated ETS.

Although the majority of the ETS has not changed since the second re-adoption in January, these are some of the more significant changes.

Employer Monitoring of COVID-19 Test

The second adoption of the ETS did not allow for self-administered testing unless observed by the employer or an authorized telehealth proctor for the employee to return to work. However, under the third re-adoption, a COVID-19 test could be self-administered and self-read if there is an independent alternative way to verify the results (e.g., a time stamped photograph of the results).

Exclusion of Employees

The ETS does have some guidance on when an employee can return to work. Although the ETS provides criteria for employees to return to work after a COVID-19 case, employers are to review the current California Department of Public Health (CDPH) guidance regarding quarantining and other measures. Note that although the ETS no longer discusses vaccinated and unvaccinated employees, the CDPH recommended guidelines do.

Removal of the Fully Vaccinated Exception

The fully vaccinated exception has been removed from the ETS. The regulations will apply to all employees regardless of vaccination status.

Face Coverings

The requirement that face coverings pass the “light test” (e.g., the covering does not let light pass through) has been removed.

The ETS is in line with the updated CDPH guidance on the use of face coverings which eliminates the requirement that employees who are not fully vaccinated wear face coverings indoors and in vehicles. However, face coverings may still be required where CDPH or a local ordinance is requiring them.

Cleaning and Disinfecting

The ETS has removed the requirement for employers to clean and disinfect frequently touched areas and the cleaning of areas, materials and equipment used by a COVID-19 case.

Definition Changes/Additions

The ETS amends the definition of “high exposure period” to “infectious period.” In where the infectious period is defined to start two (2) days before symptoms develop or a positive test. The period would last until 10-days after.

Furthermore, the ETS adds the definition of a “returned case.” Whereas an employee has returned to work after the initial onset of COVID-19 symptoms or positive test and has not developed any symptoms for 90 days.

Additional Information

The requirement of using partitions where physical distancing is not feasible has been removed. Yet physical distancing of at least six feet, (or as much distance between peoples as possible) is recommended.

Links

Link to the COVID 19 Cal OSHA webpage:

https://www.dir.ca.gov/dosh/coronavirus/

Link to the Cal OSHA COVID 19 FAQs webpage – March 2, 2022 version:

https://www.dir.ca.gov/dosh/coronavirus/FAQs.html

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