Cal/OSHA Emergency Temporary Standards (ETS) Changes Starting January 14, 2022

This past weekend brought about two important updates for employers in California. First, the Federal OSHA ETS is back after the 6th Circuit Court of Appeals lifted a stay on the rule this past Friday evening. Additionally for CA employers, Cal/OSHA voted to re-adopt the COVID-19 ETS which also includes several significant changes.

For more information on the Federal OSHA ETS, please click here. The Federal OSHA ETS has a new enforcement date, and it applies to private employers with 100 or more employees.

The Cal/OSHA ETS applies to all employers with locations in California. On December 16, 2021, Cal/OSHA readopted the COVID-19 ETS including “important revisions to make the workplace rules consistent with the latest requirements and recommendations from the California Department of Public Health (CDPH)”.

What is it?  Readoption of the current Cal/OSHA ETS, and it also includes important revisions to the current ETS. Click here for more details.

When are the changes effective? The new revisions take effect on January 14, 2022.

What are some of the notable changes?

  • Updated instructions regarding worker notification of COVID-19 exposures
  • Face coverings – physical distance and testing requirements for those exempted from a face mask and cannot wear a non-restrictive alternative
    • Cal/OSHA ETS clarifies that testing must be done during paid time and at no cost to the employee
  • Employers are now required to make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before the “close contact” with a COVID-19 case occurred, even if they are asymptomatic.
  • Testing during outbreaks and major outbreaks – employer must now make weekly testing (outbreaks) and twice-weekly testing (major outbreaks) available to asymptomatic fully vaccinated employees in the exposed group
  • Employees who have recently recovered from COVID-19 and those who are fully vaccinated are not required to be excluded from the workplace, but must wear a face coverage and maintain six feet of physical distancing for 14 calendar days following the last date of contact.
  • Return to work following close contacts – under the readoption, employees who had close contact, but never developed symptoms may return to work after 14 days unless one of the following applies:
    • 10 days have passed since the close contact and the person wears a face coverage and maintains six feet of distance from others for 14 days OR
    • Seven days have passed since the close contact, the person tests negative at least five days after the close contact, and the person wears a face covering and maintains six feet of distance from others for 14 days. The new ability to return after seven days with a negative test reflects recently updated CDPH guidance.
  • Cal/OSHA ETS updated certain definitions:
    • “Worksite” now specifically excludes the employee’s personal residence, locations where an employee works alone, and remote work locations chosen by the employee
    • Certain definitions were revised to be more consistent with Federal OSHA, including:
      • “COVID-19 test” now includes specific instructions for workers using a test at home with self-read results. The employer or telehealth professional must observe the test results.
      • “Face coverings” was updated to include more specific details on the different types of acceptable face coverings.
      • “Fully vaccinated” now mentions the minimal amount of time workers need to wait between the first and second shot of a two-dose vaccine.

Who must comply? Employers that employ workers in California

What should an employer do next?

  • Review the changes in detail to ensure compliance on January 14, 2022.
  • Revise its written COVID-19 Prevention Program and any other related documents
  • Cal/OSHA is expected to amend the ETS once again to reflect the Federal OSHA ETS; stay tuned for updates in the next days or weeks.

For more information, please visit https://www.dir.ca.gov/dosh/coronavirus/

While every effort has been taken in compiling this information to ensure that its contents are totally accurate, neither the publisher nor the author can accept  liability  for any inaccuracies or changed circumstances of any information herein or for the consequences of any reliance placed upon it. This publication is distributed on the understanding that the publisher is not engaged in rendering legal, accounting or other professional advice or services. Readers should always seek professional advice before entering into any commitments.


About Michelle Cammayo

Michelle Cammayo has more than 13 years of Employee Benefits experience specializing in all lines of health and welfare benefits. Today, Michelle works closely with clients and partners to provide guidance in areas of the law including ERISA, HIPAA, COBRA, FMLA and PPACA. She also oversees the Compliance Department at Bolton & Company to ensure we are helping our clients manage and eliminate risk with regards to employee benefit compliance.

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