With last month’s announcement that Cal/OSHA could implement a new permanent standard for COVID-19 mitigation in workplaces, it’s raising questions about how much the new rules would differ from the current procedures.
The draft permanent ETS is intended to replace the current COVID-19 ETS, which will remain in effect through Dec. 31, Bianca Saad, vice president, Labor and Employment – Content, Training and Advice with the California Chamber of Commerce, told the Northern California Record by email.
“With a possibly permanent ETS on the horizon, employers will need to prepare for the likelihood that they’ll continue to be subject to COVID-19 ETS requirements for at least another two years,” Saad said. “Keeping track of COVID-19 cases, conducting contact tracing, and excluding cases and close contacts – these would all continue to be a part of the workplace, just to name a few.”
Saad noted that while many obligations imposed by the ETS will be familiar, there are some changes to highlight, including how the new California Department of Public Health (CDPH) order on close contact affects the current ETS mandates.
“One of the more drastic changes in the draft permanent standard, compared to the current ETS, is the new definition of ‘close contact’ and ‘infectious period,’” Saad said. “The new CDPH order impacts the current ETS provisions in that it redefines ‘close contact,’ which has long been known as someone who is within six feet of a COVID-19 case for a cumulative 15 minutes or more in a 24-hour period.”
But now, Saad noted, the definition is “someone sharing the same indoor airspace” for a cumulative total of 15 minutes or more over a 24-hour period during an infected person's infectious period.
“This is a significant change from the previous definition that employers have been familiar with since the start of the pandemic,” Saad said. “And unfortunately, the term ‘indoor airspace’ is not only vague and ambiguous but has significant implications for employers in that it will increase the likelihood that contacts of a COVID-19 case may need to be excluded, even if they were greater than six feet away from that person.”
Another significant difference with Cal/OSHA’s draft permanent standard is it appears to have removed the requirement for employers to provide exclusion pay to employees who are excluded from the workplace due to a work-related COVID-19 exposure, Saad said.
“Additionally, while the current ETS specifically refers to a Written COVID-19 Prevention Program and specifies various topics to be covered within the plan, the draft permanent standard eliminates specific training topics and references employers’ standard Injury and Illness Prevention Program,” Saad said.
Although the current ETS is set to expire at the end of the year, Saad noted it’s important for employers to be aware that some version of the ETS will be around for at least another couple of years.
“They should also continue to remain nimble, as they have throughout each adoption of the various ETS,” Saad said. “And keep an eye on the status of the draft permanent regulations to evaluate how it will impact their current COVID-19 practices and policies in the workplace.”