Cal/OSHA Updated the Covid-19 Emergency Temporary Standards for Employers (Again)

by Shannon Claire

In December 2021, Cal/OSHA announced updates to its previously issued Emergency Temporary Standards (“ETS”) aimed at preventing the spread of Covid-19 in the workplace. The new standards go into effect on January 14, 2022. Since the announcement of the new ETS, California’s Department of Public Health (CDPH) revised its guidance regarding the length of time an individual must isolate/quarantine following a positive diagnosis of Covid-19 or after being in close contact to someone with Covid-19. To address the inconsistency between the isolation period (also called exclusion period in the ETS) under Cal/OSHA’s ETS and that of CDPH, California recently announced that, per executive order, the recommendations of the CDPH will prevail, and the ETS will be revised accordingly.

Here is what employers need to know about excluding employees from the workplace:

Positive Covid-19 Test (Applicable to all Employees):

  • Any employee with a positive Covid-19 test must be excluded from the workplace for at least 5 days following a positive Covid-19 test, regardless of vaccination status, previous infection, or the presence/ absence of symptoms.
  • Employees may return to work after day 5, so long as the employee receives a negative Covid-19 test that occurs on day 5 or after, the employee is asymptomatic or their symptoms are resolving, and the employee does not have a fever of 100.4 or higher.
    • Employees must wear a face covering in the workplace until day 10 following the initial positive Covid-19 test.
  • If an employee has symptoms (other than a fever) that are not resolving, the employee may return to work after 10 days following the initial positive test.
  • If an employee is unwilling or unable to obtain a Covid-19 test, the employee may return to work after day 10 following the initial positive Covid-19 test.
  • If an employee has a fever of 100.4 or higher, the employee must be excluded from work until the fever resolves without the use of fever-reducing medication.

Exposure to Someone with Covid-19:

The new ETS impose different exclusion obligations for employees, depending on the employee’s vaccination status. There are 4 categories of vaccinated status: unvaccinated, vaccinated, booster-eligible, and boosted.

Definitions:

  • Unvaccinated: An employee who has not received, at least 14 days prior, either the second dose in a two-dose Covid-19 vaccine series or a single-dose Covid-19 vaccine.
  • Vaccinated: An employee is considered fully vaccinated if the employer has documented that the employee received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine.
  • Booster-eligible: A fully vaccinated employee who received a multiple-dose vaccine 6 or more months prior, or who received a single-dose vaccine 2 or more months prior is eligible to receive a vaccine booster.
  • Boosted: A fully-vaccinated employee who has received a Covid-19 vaccine booster.
  • Close contact: Someone who was within 6 feet of an individual who tested positive for Covid-19 for a cumulative total of 15 minutes or more in a 24-hour period.

Exclusion Following a Close Contact:

  • Unvaccinated employees: Unvaccinated employees must be excluded from the workplace for at least 5 days following the last close contact to someone with Covid-19.
    • Exposed employees may return to work after 5 days with a negative Covid-19 test performed on or after day 5. If an employee is unwilling or unable to obtain a Covid-19 test, the employee may return to work after day 10 following the last close contact.
  • Booster-eligible, vaccinated employees: A booster-eligible employee must be excluded from the workplace but may return to work if: the employee is asymptomatic, tests negative for Covid-19 on day 3, 4, or 5 following the last close contact, and the employee wears a face covering in the workplace for 10 days following the last close contact.
  • Boosted/vaccinated (and not booster-eligible) employees: Employees who are boosted, or who have been vaccinated and are not yet booster-eligible do not need to be excluded from the workplace following an exposure if: they are without symptoms, obtain a negative Covid-19 test on day 5 following the exposure, and the employee wears a face covering in the workplace for 10 days following the last exposure date.

Other Employer Obligations

  • Employers must notify any affected employee of a potential Covid-19 exposure, in writing, within one business day of the employer learning of the Covid-19 exposure or potential exposure.
  • Make Covid-19 testing available, at no cost to the employee and during paid time, to any potentially exposed employee with a close contact. The only exception is if an employee previously tested positive for Covid-19 within the prior 90 days.
  • If an employee was exposed to Covid-19 in the workplace (or if the employer cannot demonstrate that the exposure was not work related) and must be excluded from the workplace, the employer must pay the employee during the period of exclusion at the employee’s regular rate of pay. Exception: exclusion pay is not required if the employee received disability payments or was covered by worker’s compensation and received temporary disability.
  • This is not a complete list of all employer obligations under the ETS. Please find the complete Cal-OSHA Emergency Temporary Standards here.

Employer obligations related to Covid-19 continue to evolve under both state and federal law. Should you have any questions, we encourage you to reach out to the Holden Law Group team for the most up-to-date guidance.