On May 20th, the Cal/OSHA Standards Board will consider changes to COVID-19 Emergency Temporary Standards (“ETS”).
The proposed changes would still require employers to have an established written COVID-19 Prevention Program (“CPP”) that covers everything from training and communication with employees to the investigation of COVID-19 cases in the workplace.
However, there are notable proposed changes in the requirements for the CPP, definitions, and COVID-19 case management procedures, which will have significant impacts on California employers.
Close Contact Instead of COVID-19 Exposure
This proposed change replaces the defined term “COVID-19 exposure” with the more commonly used term, “close contact.” Although the definition remains the same (i.e., 6 feet, 15 minutes, 24 hour period), it now includes an exception for employees who wore a respirator under a Respiratory Protection Program, whenever they were within six feet of a COVID-19 case during the high-risk exposure period or period that someone could have been infectious.
Exposed Group Instead of Exposed Workplace
This proposed change eliminates some confusing defined terms like “exposed workplace” and adds a new term, “exposed group.” In shifting the language, the new definition would codify the guidance already contained in Cal/OSHA’s existing FAQs as to who and where would be included in or exempted from an “exposed group.” The exemptions include:
- Areas in which a person momentarily passes through while everyone is wearing face coverings without congregating;
- Distinct groups of employees, such as different work shifts that do not overlap; and,
- If a COVID-19 positive person had visited a work location for less than 15 minutes and all persons wore face coverings, those individuals present would not be part of an exposed group.
In addition to aligning the definitions with Cal/OSHA’s guidance, the definitions also appear more consistent with current guidance from the Centers for Disease Control and Prevention (“CDC”) and the California Department of Public Health.
The proposed change still requires employers to notify employees of potential exposure or “close contact” within one business day. However, the notification obligation is now tied to when the employer knew or should have known of a COVID-19 case. The proposed changes to the notice requirement are significant in that the obligation can now be triggered if an employer should have known of a COVID-19 case, even if they actually did not. The proposed changes would also impose an obligation on employers to provide this notification in a written format. The written notice may be given by personal service, email, or text if it can reasonably be anticipated to be received by the employee within one business day and include information required by Labor Code section 6409.6. Cal/OSHA’s proposed changes are, as a result, shoring up the notice requirement to align with the written notification required by Assembly Bill 685.
If adopted, the revision states the physical distancing subsection would only apply before July 31, 2021. Moreover, the revision states the following employees would be exempt from the physical distancing requirements:
- Employees wearing respirators under a Respiratory Protection Program
- Subject to certain requirements, locations at which all employees are fully vaccinated, except for employees who require a reasonable accommodation or exception to vaccination
The proposed revisions also reduce the burden on employers with respect to 6 feet separation of employees by modifying the burden for employers to show that physical distancing cannot be achieved or sustained. Through the proposed changes employers would no longer have to demonstrate that six feet separation “is not possible” and have the less stringent requirement of showing that “six feet separation is not feasible.”
To reflect recent changes from the California Department of Public Health guidance, the proposed changes add the following new exceptions to the face-covering requirement:
- When all persons in a room are fully vaccinated and do not have COVID-19 symptoms;
- Employees wearing respirators under a Respiratory Protection Program;
- Employees who are fully vaccinated when they are outdoors so long as they are free of COVID-19 symptoms.
Exclusion from Worksite
The proposed revisions now match the recent update to the ETS FAQ, indicating that fully vaccinated employees that do not have COVID-19 symptoms do not have to be excluded from the workplace. Individuals who have been positive for COVID-19 and have recovered and return to work, also do not have to be excluded for 90 days after the initial onset of COVID-19 symptoms or for individuals who never developed symptoms, 90 days from the first positive test.
The proposed revisions further clarify that exclusion pay is not required where the employee received disability payments or was covered by workers’ compensation and received temporary disability. This change would also align the standard with Cal/OSHA’s current guidance.
If the revisions to the ETS are approved, it will ease employers’ burden as they reopen in some respects, but even if passed as revised, employers will need to continue to follow other state and local guidance regarding COVID-19 safety in the coming months. Employers should further be aware of the possibility of there being inconsistencies in Cal/OSHA’s ETS and guidance from the state and local health department, which could result in worker confusion or challenging workplace dynamics.
Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA ETS or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.