On April 21, 2022, the Cal/OSHA Standards Board (Board) met and formally adopted a third version of the COVID-19 Emergency Temporary Standards (ETS) by a vote of 6-1.  

The new ETS makes a number of changes to prior ETS rules, including: the significance of vaccination status, face-covering standards; testing requirements; cleaning and disinfection requirements; and the guidelines to follow for exclusion from and returning to work criteria.

Vaccination status is no longer an aspect of the ETS, even in the event of a COVID close contact in the workplace. In fact, the definition of “fully vaccinated” has been removed from the ETS.  Employers must now provide COVID-19 testing to any employee with COVID-19 symptoms, regardless of vaccination status. 

Except in the case of a positive COVID-19 test, face covering requirements, including for non-fully vaccinated employees, have largely been removed from the ETS. However, face coverings will be required if a multiple COVID occurrence or major outbreak occurs in a workplace or if required by an order from the California Department of Public Health (CDPH). Also, face coverings are still required for both screener and employees if an employer opts to have indoor screenings for COVID-19. Face coverings are no longer required to be worn outdoors by employees who are not fully vaccinated when a six-foot distance from others cannot be maintained, unless the employee has been exposed to COVID-19 in the workplace. Additionally, the requirement that the material of a face covering must prevent light from passing through it when held up to a light source has been removed.

However, employers must provide an employee with a respirator for voluntary use upon request, regardless of vaccination status and must provide effective training and instruction regarding the use and fit of a respirator. Similarly, under the new ETS, employers must provide a face covering to an employee, regardless of vaccination status, upon the request, when required by orders from the CDPH, or as required by the ETS in the event of an outbreak in the workplace. Of course, employees may choose to wear face coverings unless doing so would create a safety hazard.

The definition of close contact is now subject to change based on a CDPH regulation or order. If an employee has close contact in the workplace with a COVID-19 case, the employer must review current CDPH guidance regarding quarantine or other measures to take to prevent transmission of COVID-19. The new ETS continues the requirement that employers continue the earnings, wages, seniority and all other rights and benefits, of an employee excluded from work due to COVID-19.

The new return to work rules for employees who have tested positive for COVID-19 are as follows:

A. No symptoms or resolved symptoms: 

Employees who have tested positive for COVID-19, regardless of their vaccination status or previous infection, who do not develop COVID-19 symptoms or whose COVID-19 symptoms are resolving, must not return to work until:

1. At least five days have passed from the date that COVID-19 symptoms began or, if the person does not develop COVID-19 symptoms, from the date of first positive COVID-19 test;

2. At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medications; and

3. A negative COVID-19 test from a specimen collected on the fifth day or later is obtained; or, if unable to test or the employer chooses not to require a test, 10 days have passed from the date that COVID-19 symptoms began or if the person does not develop COVID-19 symptoms, from the date of first positive COVID-19 test.

B. Unresolved symptoms:

An employee who tests positive for COVID-19, regardless of their vaccination status or previous infection, whose COVID-19 symptoms are not resolving, may not return to work until:

1. At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medication; and

2. Symptoms are resolving, or 10 days have passed from when the symptoms began.

Regardless of vaccination status, previous infection or lack of COVID-19 symptoms, an employee who tested positive for COVID-19 must wear a face-covering in the workplace until 10 days have passed since the date that COVID-19 symptoms began or, if the person did not have COVID-19 symptoms, from the date of their first positive COVID-19 test.

Acceptable COVID-19 tests to identify COVID-19 cases have been broadened to include self-administered tests, but self-administered tests cannot be used to determine return to work unless another means of independent verification can be provided, such as a time-stamped photo of the test results.

As for the return to work after a close contact in the workplace, the Board explained that under the Governor’s Executive Order N-84-20, the CDPH’s Isolation and Quarantine Guidance, updated on April 6, 2022, and not the ETS, will dictate these isolation and quarantine requirement times.  Employers may refer to the What Employers and Workers Need to Know About COVID-19 Isolation and Quarantine chart to determine the length of time that an employee with a close contact in the workplace must isolate or quarantine. However, the Board also clarified that the CDPH guidance, which changes the definition of “close contact,” will not determine this definition, which the new ETS still defines as being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period that overlaps with the COVID-19 case’s infectious period, regardless of the use of face coverings. In particular, the CDPH’s guidance changes the “close contact” definition by discarding the “within six feet” standard and including all persons in an indoor airspace with a COVID-19 positive person, but, as the Board explained, only a CDPH regulation or order, and not its guidance, would supersede the ETS’s close contact definition.

An additional change under the new ETS is the removal of the cleaning and disinfection requirement for surfaces and objects, including with respect to an area used by a person who tested positive for COVID-19. Further, specific rules are provided under the new ETS for employer-provided housing and for employer-provided transportation. 

The third readoption will be the final version of the ETS and, per Governor Newsom's executive order, may not remain in effect beyond December 31, 2022. Although no decision was reached, employers should be aware that the Board discussed a permanent standard that replaces the ETS after December 31, 2022, which would contain a permanent infectious disease standard and/or amendment to the Injury and Illness Prevention Program (IIPP) standards. 

The authors would like to gratefully acknowledge the assistance of Joanne Warriner.