Jan. 18, 2022 Cal/OSHA Publishes New Guidance on Its Emergency Temporary Standards
On Friday evening, Cal/OSHA published guidance for employers on the changes to the agency’s emergency temporary standards (“ETS”). The new guidance includes fact sheets on “What Employers Need to Know About the December 16 Standards” (which went into effect on January 14, 2022) and “What Employers and Workers Need to Know About COVID-19 Isolation and Quarantine,” as well as FAQs on the revisions.
Briefly, the key changes to the ETS are:
- Isolation and quarantine periods have been revised to align with changes to the California Department of Public Health’s (“CDPH”) guidance on isolation and quarantines. These changes allow some workers to return to the workplace after day 5, if they have a negative test with a specimen collected on day 5 or later. More details can be found on the Cal/OSHA fact sheet, which contains a helpful chart to assist employers in applying these requirements in different scenarios.
- A new directive requires employees who are exempted from wearing a face covering due to a disability or medical or mental health condition, and cannot wear a non-restrictive alternative, to physically distance at least six feet from others and either be fully vaccinated or tested at least weekly for COVID-19 (such testing must be during paid time and at no cost to the employee).
- In recognition of the number of breakthrough infections, testing made available following “close contact” with a COVID-19 case in the workplace must now also be offered to fully vaccinated employees, even if they are asymptomatic. (Under the prior ETS, testing only needed to be provided during paid time to unvaccinated employees or vaccinated employees who had symptoms.)
- Likewise, during outbreaks, employers must now make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available to asymptomatic fully vaccinated employees in the exposed group.
- The definition of “face coverings” has been updated to include more specific detail on the different types of acceptable face coverings. Face covering means a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers (fabrics that do not let light pass through when held up to a light source, that completely covers the nose and mouth and is secured to the head with ties, ear loops, or elastic bands that go behind the head). A face covering is a solid piece of material without slits, visible holes, or punctures, and must fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face.
Employers should promptly update the COVID-19 Prevention Plan section of their Injury and Illness Prevention Program (“IIPP”) to reflect these changes.
Last week also brought clarity on the potential impact of the federal OSHA ETS, which would have required employers with 100 or more employees to require vaccination or test employees weekly for COVID-19. (Although the federal ETS would not have applied directly in California, Cal/OSHA would have had to revise its ETS to be at least as protective.) As you likely saw in the news, on Thursday, the U.S. Supreme Court struck down the federal OSHA ETS as exceeding OSHA’s statutory authority.
The media coverage of the U.S. Supreme Court’s decision has created some confusion about whether private employers can still mandate vaccination or weekly testing. That decision deals with whether the federal OSHA holds the legal authority to mandate private employers to have such a policy. In most states, including California, private employers may still choose to mandate vaccination or implement weekly testing if they would like (some states, including Florida, Montana, and Texas, impose limits on an employer’s ability to mandate vaccination and/or testing).
The only practical effect the U.S. Supreme Court’s decision has on private employers is that they can no longer rely on federal law as a basis for their own vaccination or testing mandates. Instead, employers responding to employee inquiries should be ready to explain their rationale for such a policy.
As we have learned throughout the pandemic, governmental regulations and guidance are subject to change rapidly and a “one-size-fits-all” approach can be elusive given the wide range of workplace differences. Healthcare employers, in particular, are subject to additional requirements at both the state and federal level. In addition, last week, the U.S. Supreme Court upheld the Centers for Medicare and Medicaid Services (“CMS”) vaccine mandate for providers and suppliers subject to Medicare and Medicaid Conditions of Participation (CoP), Conditions for Coverage (CfC), or Requirements for Participation (RFP).