The Occupational Safety and Health Standards Board (OSHSB) met on December 16, 2021, to consider a second readoption of its COVID-19 Workplace Emergency Temporary Standard (ETS). After public comment and some discussion, the OSHSB —the standards-setting agency within the California Division of Occupational Safety and Health (Cal/OSHA) — did, indeed, vote to readopt the ETS with the proposed amendments. The changes take effect January 14, 2022, and will remain in place until April 14, 2022.
As previously reported, the revised ETS makes notable changes to several key issues, including testing, physical distancing, vaccination and exclusion of employees after exposure. In general, the changes tend to eliminate many of the current distinctions between vaccinated and unvaccinated workers.
For example, under the present COVID-19 ETS, a vaccinated employee who has a close contact at work doesn’t need to be excluded or tested unless they show symptoms after their exposure. However, effective January 14, 2022, a vaccinated employee who has a close contact and shows no symptoms would still need to be tested and either (a) excluded from the workplace for 14 days despite a negative test, or (b) return to the workplace and maintain 6 feet social distancing and masking for 14 days.
The revised ETS also removes the distinction between vaccinated and unvaccinated workers with respect to COVID-19 outbreak testing. Under the current ETS, when there’s a COVID-19 outbreak, employers must make testing available to unvaccinated employees in the exposed group. Beginning January 14, they must make testing available to all employees in the exposed group, regardless of vaccination status.
The readopted ETS also makes some changes to the face covering requirements. For example, employers who screen employees indoors for COVID-19 symptoms must ensure that all employees, regardless of vaccination status, wear face coverings. Additionally, the revised ETS changed the definition of face covering, adding a new “light” test that requires the use of face coverings that “do not let light pass through when held up to a light source.” It’s not clear yet what that means or how that will be enforced, but Cal/OSHA is expected to illuminate these changes in upcoming FAQs.
The readopted ETS didn’t change the general ETS face covering rules that allow fully vaccinated employees to go without face coverings indoors; however, as a reminder, California just reinstituted a statewide face covering requirement for “indoor public settings through January 15, 2022, regardless of vaccination status — and the California Department of Public Health clarified that this requirement is intended to apply to all workplaces.
And employers also must remember that even when that order expires, some local orders have established face covering requirements beyond what the ETS requires.
CalChamber will provide more in-depth updates on the revised ETS in the near future. Employers should also expect Cal/OSHA to issue guidance on the ETS revisions before they take effect on January 14, 2022.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
CalChamber members can read more about the COVID-19 emergency temporary standard in IIPP and COVID-19 in the HR Library. Not a member? See how CalChamber can help you.
