Cal/OSHA’s workplace regulators have approved updated COVID-19 mitigation standards that are scheduled to take effect next month.
The ETS (Emergency Temporary Standards) updates do not take effect until Jan. 14, but many of the revisions eliminate the distinction between fully vaccinated and not fully vaccinated employees, Matthew Roberts, CalChamber Employment Law Counsel, said in an email response to the Northern California Record.
“For example, testing must be provided to all employees who have a close contact with a known COVID-19 case regardless of vaccination status where under the current ETS employers do not have to offer testing to asymptomatic vaccinated individuals who had a close contact,” Roberts said.
Under the current ETS, Roberts noted that employers don’t have to offer testing to fully vaccinated employees. But the new ETS will require a business to offer testing to all employees when there’s an outbreak (three cases at the worksite within a 14-day period) or major outbreak (20 cases within a 30-day period).
Another major change concerns which employees must be excluded after a close contact with a known COVID-19 case.
“The current ETS does not require employers to exclude asymptomatic fully vaccinated employees, or those who have fully recovered from a COVID-19 infection in the previous 90 days, who were a close contact to a known case,” Roberts said. “Under the new ETS, employers must either exclude the fully vaccinated or recovered employee, or they must wear a face covering and maintain social distancing from all other employees for a period of 14 days following the last contact.”
The new ETS also changed the return-to-work criteria for non-fully vaccinated or recovered employees who had a close contact, but did not develop COVID-19 symptoms. In general, these employees must remain out of the workplace for 14 days unless the employer exercises one of the two exceptions:
• The employee remains out of the workplace for 10 days and upon return wears a face covering and socially distances from other employees for 14 days following the last contact with the known cases; or
• The employee remains out of the workplace for seven days and upon return wears a face covering and socially distances from other employees for 14 days following the last contact with the known cases.
Lastly, Roberts noted that the new ETS updates the definition of a valid face covering, requiring any cloth masks to be made of two layers of fabrics that “do not let light pass through when held up to a light source.”
Meanwhile the separate federal OSHA workplace vaccine mandate for businesses with 100 or more employees is now under review by the U.S. Supreme Court
“We frankly do not know what will happen before the U.S. Supreme Court,” Roberts said. “Justice Kavanaugh oversees the 6th Circuit which just dissolved the stay and revived the federal OSHA vaccine/testing mandate, and he has received several petitions requesting a new stay of the rule.”
The Supreme Court has ordered briefing from the Biden administration on the challenges to the OSHA rule due by Dec. 30, and a decision on whether the rule will move forward isn’t likely until after the New Year Day holiday.
If a stay is not reimposed, Roberts noted that OSHA has already set its enforcement schedule, and Cal/OSHA will have a narrow window to adopt its own rule that is at least compliant with the OSHA rule.
“The federal OSHA case does not impact the ETS as described above, so no matter how the U.S. Supreme Court rules on the OSHA vaccine/testing mandate California employers still must follow the Cal/OSHA ETS, including the new revisions taking effect on January 14,” Roberts said. “Employers with 100 or more employees nationwide should also start thinking about how it will implement the vaccine/testing mandate should it survive the U.S. Supreme Court challenge.”