Effective December 15, 2021

The Occupational Safety and Health Standards Board has approved revisions to the COVID-19 Prevention Emergency Temporary Standards (ETS) based on the latest recommendations from the California Department of Public Health. The revised ETS are effective on January 14, 2022, and will be in effect for 90-days. The revisions include the following:

• Investigating and responding to COVID-19 cases in the workplace: Employers must continue to properly notify employees, employee representatives and any other workers at a worksite of possible COVID-19 exposures within one-business day. This section was updated to give employers more clear instructions on how to notify exposed workers.
• Face Coverings: Masks must fit snuggly over the nose, mouth and chin with no large gaps on the outside of the face. Additionally, the definition was updated to include more detail on the different types of acceptable face coverings, including the use of fabrics that do now allow light pass through when held up to a light source.
• Testing and Exclusion: The following revisions were made to conform with CDPH recommendations:
  • Employers are required to make COVID-19 testing available at no cost and during paid time to all employees, including those who are fully vaccinated, who have a ‘close contact’ with a COVID-19 case, even if they are asymptomatic.
  • “COVID-19 Test” is now expanded beyond viral tests to include home tests, over-the-counter tests, and point-for-care tests. Importantly, a test cannot be self-administered and self-read unless the employer or an authorized telehealth providers observes.
  • During outbreaks and major outbreaks, employers must now make weekly testing (outbreaks) or 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 after ‘close contact’ but must wear a face covering and maintain six feet of physical distancing for 14-calendar days following the last date of contact.
  • “Worksite” was clarified to not include locations where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely.
• Please note that the definition of “fully vaccinated” was not changed to required booster shots.
• Return to work criteria: The period of time before an employee can return to work after close contact or COVID-19 infection has been revised to be consistent with current CDPH guidelines. These time frames will automatically update if CDPH updates their guidelines pursuant to the Governor’s executive order (N-84-20). Under the re-adoption, employees who had a 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 covering and maintains six-feet of distance from others for 14-days; or
  • 7-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 distance from other for 14-days.

Please also note, employers must continue to maintain an effective COVID-19 Prevention Program that includes identifying and evaluating employee exposures to COVID-19 health hazards, training employees on how to prevent hazards and implementing procedures to correct unsafe conditions.

Cal/OSHA is updating its resources to assist employers with understanding their obligations required by the revised ETS. The COVID-19 webpage contains an updated fact sheet, which describes revisions to the ETS. When the revised ETS becomes effective, Cal/OSHA will publish updated FAQs. Cal/OSHA’s model COVID-19 Prevention Program in English and Spanish is a helpful resource for employers to develop and maintain an effective written program.

Original Standard Effective December 1, 2020

The Department of Industrial Relations (DIR) Occupation Safety and Health Standards Board has adopted emergency temporary standards addressing a variety of issues related to COVID-19 in the workplace. NECA opposed these proposed regulations, as we saw them as potentially confusing to contractors, as much of what the new standard requires is duplicative of recently enacted state law and issued guidance.

For example, the emergency standard contains notification requirements similar to those in AB-685, California’s COVID-19 notice and reporting requirement law that took effect January 1, 2021. While both AB-685 and the standards target prompt notification, there are differences in language, definitions and terminology between AB-685 and the new Cal/OSHA standard, which raise uncertainty about when the notice requirements are triggered and to whom notice should be given under each rule.

The COVID-19 Temporary Standards apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. Under the new regulations, employers must have a written COVID-19 Prevention Plan that addresses the following:

• A system for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
• Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
• Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one-business day about potential exposures, and offering testing to workers who may have been exposed.
• Correcting COVID-19 Hazards – including correcting unsafe conditions and work practices as well as providing effective training to instruction.
• Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.
• Face coverings – providing face coverings and ensuring they are worn.
• Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.
• Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
• Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
• Criteria for employees to return to work after recovering from COVID-19.
• Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
• Specific requirements for infection prevention in employer-provided housing and transportation to and from work.

Contractors will need to immediately take steps to adhere to these new requirements. While much of the emergency temporary standards reflect state law or previous Cal/OSHA voluntary guidance that many contractors are already following, there are many specific requirements that are new and significant. Contractors should consult with their safety, hygiene, and legal advisors on developing a written COVID-19 Prevention Program as well as developing or amending their policies to account for the new requirements.

In an effort to ensure you have all related and referenced information, please find attached the following:

• Cal/OSHA COVID-19 Emergency Temporary Standard FAQs
• Fisher Phillips “Top 9 Things Employers Need to Know About Cal/OSHA’s New Emergency COVID-19 Standard”
• Summary and Requirements of AB-685
• Summary and Requirements of AB-1867
• Summary and Requirements of SB-1159