Updated COVID-19 Requirements for California Employers

On May 6, 2022, the California Division of Occupational Safety and Health (Cal-OSHA) updated its COVID-19 Prevention Emergency Temporary Standards (ETS) to incorporate updated guidance from the California Department of Public Health (CDPH). These guidelines are set to remain in effect until December 31, 2022, unless modified sooner.

Below is a summary of the changes in the new regulations.

1. DEFINITIONS
   1. 1. “High Risk Exposure Period” is now called “Infectious Period,” though the definition remains the same. The periods are defined below:
         1. For COVID-19 cases (i.e., people who have a positive COVID-19 test or diagnosis, or who are subject to a COVID-19-related order to isolate issued by a local or state health official) who develop COVID-19 symptoms, from 2 days before they first develop symptoms until all of the following are true: it has been 10 days since symptoms first appeared; 24 hours have passed with no fever, without the use of fever-reducing medications; and symptoms have improved.
         2. For asymptomatic COVID-19 cases, from 2 days before until 10 days after the specimen for their first positive test for COVID-19 test was collected.
      2. “Close Contact” is defined more broadly. Employees are now in Close Contact if they share the same indoor space, versus being within 6 feet, for a cumulative total of 15 minutes or more over a 24-hour period during an infected person’s Infectious Period.
      3. The regulations no longer distinguish between “fully vaccinated” and “unvaccinated” or “not fully vaccinated” because all protections now apply regardless of vaccination status.

2. Over-the-Counter COVID-19 Tests

Previously, employers had to observe an employee perform an at-home test, either in-person or by video. Now, employees can take an at-home test in private send a date/time-stamped photo of their test result to their employer.

3. Face Coverings
4. 1. Face covering requirements are the same for all employees, regardless of vaccination status.
   2. Respirators (e., NIOSH approved filtering facepieces such as N95 masks) must be provided to all employees upon request, regardless of vaccination status. Previously, only unvaccinated employees were entitled to respirators upon request.
   3. Face coverings are required in homeless shelters, emergency shelters, cooling and heating centers, healthcare settings, state and local correctional facilities and detention centers, long-term care settings, and adult and senior care facilities.

4. Cleaning and Disinfecting Requirements Were Deleted from Cal-OSHA’s ETS.

Employers are no longer required to:

• Regularly clean frequently touched surfaces and objects, such as doorknobs, elevator buttons, equipment, tools, handrails, handles, controls, phones, headsets, bathroom surfaces, and steering wheels;
• Inform employees of cleaning and disinfection protocols, including the planned frequency and scope of cleaning and disinfection;
• Clean areas, material, and equipment used by a COVID-19 case during the Infectious Period or disinfect if the area, material, or equipment is indoors and will be used by another employee within 24 hours of the COVID-19 case.

Employers are still required to:

• Allow time for employee handwashing and encourage employees to wash their hands for at least 20 seconds; and
• Provide employees with an effective hand sanitizer.

5. COVID-19 Testing
   1. COVID-19 testing must now be made available to all employees with COVID-19 symptoms, regardless of vaccination status and regardless of whether there is a known exposure at work or elsewhere.

6. Return-to-Work Requirements

Return-to-work requirements have been simplified to coincide with CDPH requirements. Regardless of vaccination status, employees who test positive for COVID-19 can return to work after 5 days if they have a negative test, symptoms are improving, and they wear a face covering at work for an additional 5 days.

Specifically:

1. 1. Employees who test positive for COVID-19, regardless of vaccination status, previous infection, or lack of symptoms:
      1. Must be excluded from the workplace for at least 5 days after start of symptoms or after date of first positive test if no symptoms. Day 1 is the first day following the onset of symptoms, or if no symptoms, the day following the first positive test.
      2. Can return to work on day 6 if no symptoms are present or are resolving, and employee tests negative on day 5.
      3. Must wear a face mask around others for a total of 10 days.
      4. If an employee tests positive on day 5 or later, or if the employee is unable or chooses not to test, the employee can return to work on day 11 if they are fever-free for 24 hours without the use of fever-reducing medications.
      5. If an employee has a fever, isolation must continue and the employee may not return to work until 24 hours after the fever resolves without the use of fever-reducing medications.
      6. If an employee’s symptoms other than fever are not resolving, they may not return to work until their symptoms are resolving or until day 11.
   2. Employees who are exposed through Close Contact with someone who has COVID-19 (except for High-Risk Settings):
      1. Asymptomatic employees with Close Contact, regardless of vaccination status:
         1. Can continue to come to work and do not need to isolate.
         2. Must test within three to five days after their last Close Contact, unless they were infected within the prior 90 days and they do not have symptoms.
         3. Must wear face coverings around others for a total of 10 days after exposure.
         4. If asymptomatic employees develop symptoms, they must be excluded pending the results of a test. If they test positive, they must follow the protocols in section (VI)(1).
         5. If an exposed employee who develops symptoms is unable or chooses not to test, they must be excluded from work until day 11.

1. 1. 1. Symptomatic employees with Close Contact, regardless of vaccination status:
         1. Must be excluded and must test as soon as possible.
         2. If an employee is unable or chooses not to test, they may not return to work until day 11;
         3. If an employee tests negative and returns to work earlier than 10 days after the Close Contact, they must wear a face covering around others for 10 days following the Close Contact.

1. 3. Employees who are not fully vaccinated or did not have COVID-19 within the prior 90 days, and who are exposed to someone in the following high-risk settings: (1) emergency shelters; (2) cooling and heating centers; (3) long term care settings & adult and senior care facilities; (4) local correctional facilities and detention centers; or (5) healthcare settings:
      1. Must be excluded from work for at least 5 days after last known Close Contact.
      2. May return to work on day 6 if they test negative on day 5 and are without symptoms.
      3. If an employee is unable or chooses not to test, and if symptoms are not present, they cannot return to work until day 11.
      4. If an employee develops symptoms after returning to work, they must be excluded and test as soon as possible. If they test positive, they must follow the protocols in section (VI)(1).

7. Outbreaks and Major Outbreaks – Three or More Employees in an Exposed Group Develop COVID-19 Symptoms
   1. Outbreaks – 3 or more employees in an exposed group develop COVID-19:
      1. Employers must ensure all employees in an exposed group (i.e., all employees at a work location, working area, or a common area at work where the COVID-19 case was present during the infectious period), regardless of vaccination status, are tested; tested one week later; and tested weekly thereafter until the workplace no longer qualifies as an Outbreak. The new regulations specify that employees who had a close contact must test negative within 3-5 days of the close contact, or be excluded and follow return-to-work requirements in section VI.
      2. Employers no longer need to consider the use of barriers or partitions during Outbreaks. These requirements have been deleted.
      3. All other requirements remain the same i.e., employers must review their policies and implement changes as necessary to prevent further spread of COVID-19; employers must evaluate their ventilation system to guarantee maximum ventilation; all employees in the exposed group, regardless of vaccination status, must wear face coverings when indoors (or outdoors and less than 6 feet from another person) until the workplace no longer qualifies as an Outbreak.
   2. Major Outbreaks- 20 or more employees in an exposed group develop COVID-19
      1. Employers must ensure all employees in the exposed group, regardless of vaccination status, are tested for COVID-10 at least twice weekly until there are no new cases detected for a 14-day period. The new regulations specify that all employees in the exposed group must be tested or excluded and follow the return-to-work requirements of Section VI starting from the date the outbreak begins.
      2. Employers no longer need to consider the use of barriers or partitions during Outbreaks. These requirements have been deleted.
      3. All other requirements remain the same i.e., employers must offer respirators to all employees, regardless of vaccinations status; where respirators are not worn, employees in the exposed group must be separated from other people by at least 6 feet where feasible; employer must determine the need for a respiratory protection program; employers must consider halting all or part of operations to control the virus.

8. Employer-Provided Housing.

Protections applicable to residents in employer-provided housing now apply regardless of vaccination status and regardless of whether the employee was infected with COVID-19 within the last 90 days. Cleaning and disinfecting requirements have been deleted and are no longer required.

9. Employer-Provided Transportation

• • Fully vaccinated individuals are no longer exempt from Cal-OSHA requirements applicable to employer-provided transportation.
  • Employers must now provide respirators to all employees in a vehicle upon request, regardless of vaccination status. Previously, employers were only required to provide respirators to unvaccinated or not fully vaccinated employees.
  • Face coverings in vehicles are no longer mandatory.
  • There is a new requirement for employers to train employees on CDPH and local health department recommendations regarding face coverings and the employer’s policies. These requirements can be found in Cal. Code Regs., tit 8, § 3205.4 (c)(3).
  • Cleaning and disinfecting requirements have been deleted and are no longer required.

10. Physical Distancing Requirements

Physical distancing requirements are no longer enforced except:

• • During an Outbreak, employers must evaluate whether physical distancing is necessary.
  • In a Major Outbreak, unless maintaining 6 feet of distance is not feasible.