California’s Second Readopted COVID-19 Emergency Temporary Standard (ETS) is now in effect and will remain in place through April 14, 2022. In general, the ETS retains many of the central provisions of the earlier versions. However, there are several key changes that may impact employers:

Quarantine: The ETS includes quarantine provisions for positive cases and close contacts that could require exclusion for up to fourteen days, depending on the circumstances. However, the Governor’s December 2020 Executive Order N-84-20 provided that the isolation and quarantine periods in the ETS (also called “exclusion periods”) would be overridden by “any applicable isolation or quarantine recommended by” the California Department of Public Health (CDPH) if the periods in the ETS are longer than those recommended by the CDPH. Since the ETS was readopted, CDPH has updated its guidance to be consistent with the new CDC guidance, thereby imposing shorter quarantine periods than the ETS. In recently issued FAQs, CalOSHA confirmed that the new isolation and quarantine recommendations from CDPH replace the ETS’s exclusion periods. The FAQs provide a table outlining the applicable exclusion periods for positive cases and close contacts. In many cases, the exclusion period is now five days.

Test type: The Second Readopted ETS defines a qualifying COVID-19 test as excluding those that are “both self-administered and self-read.” This provision eliminates at-home tests for use in meeting the ETS’s provisions regarding testing, such as making tests available during outbreaks, unless those tests can be observed by the employer or an authorized telehealth proctor.

Testing for vaccinated employees: The prior rules allowed employers to exclude fully vaccinated workers from testing offers following outbreaks. The new rules no longer allow that exclusion, and testing must be made available to everyone in the exposed group regardless of vaccination status.

Face covering type: The revisions specify that face coverings must not let light pass through when held up to a light source, must not have slits, and must not have large gaps outside of the face. At the December 16, 2022, Cal/OSHA Standards Board Meeting, Board members and members of the public expressed concern that N-95 respirators may not pass the light test. As such, Board members requested Cal/OSHA address this concern through FAQs. The FAQs do not yet address this potential issue.

Mask requirements: The latest guidance from the California Department of Public Health on January 5, 2022, requires face coverings in all indoor public settings, regardless of vaccination status, through February 15, 2022. In addition, the Second Readopted ETS requires face coverings for all unvaccinated personnel.

Looking Forward

Under normal procedures, emergency temporary standards may only be readopted twice. However, on the same day that the Second Readopted ETS was issued, Governor Newsom issued an Executive Order permitting a Third Readoption of the ETS, as long as its effective date does not go past December 31, 2022. As a result, the Cal/OSHA Standards Board may begin to consider formulating and adopting a third ETS.

In addition, the Standards Board is also continuing to consider adoption of a permanent standard for COVID-19. At the December 16 meeting, the Board solicited comment on whether a permanent standard, standalone aerosol standard, or action through existing IIPP processes would be most appropriate. At that meeting, Cal/OSHA stated that it intends to publish a new proposed permanent standard before the next meeting on January 20, 2022, although that topic does not appear on the current agenda for the January 20 meeting.

The Standards Board’s decisions on both fronts may also be influenced by the Supreme Court’s issuance of a stay on the federal OSHA emergency temporary standard, which would have required employers with more than 100 employees to ensure that all employees were either fully vaccinated or tested twice weekly. Without the federal mandate in place, the Standards Board may also begin to consider state-level vaccination requirements.

Beveridge & Diamond’s Occupational Safety & Health practice group works alongside clients’ legal, EHS, and technical teams to help resolve critical enforcement, compliance, and regulatory issues relating to their facilities and operations. We also maintain a COVID-19 EH&S Resource Center to help companies navigate the pandemic, protect their employees, and minimize business interruptions. For more information, please contact the authors. With an office in California, our team includes lawyers with experience with Cal/OSHA regulations specifically. For more information, please contact the authors.