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On December 16, 2021, Cal/OSHA re-adopted revised COVID-19 Emergency Temporary Standards (ETS) , which will go into effect on Friday, January 14, 2022. The ETS still requires that employers develop and implement a Written COVID-19 Prevention Program. Employers must also train all employees on their COVID-19 prevention policies and procedures, as well as benefits available per state or municipal law, such as paid sick leave.

The definition for fully vaccinated remains unchanged and does not require a booster. However, employers should be aware that vaccinated employees who have received the booster will be subject to different quarantine (exclusion) guidelines, as explained below.

The most notable changes are as follows:

Face Coverings

The definition of face coverings is updated to mean "a surgical mask, medical procedure mask, a respirator worn voluntarily (such as an N-95 mask), or a tightly woven fabric or non-woven material of at least two layers (i.e., fabrics that do not let light pass through when help up to a light source, that completely covers the nose and mouth and is secured to the head with ties , ear loops, or elastic bands that go behind the head.” Under the ETS, face coverings do not include a “scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.”

• Face coverings are required for all employees who are not fully vaccinated while indoors or in vehicles. Employers must also ensure that face coverings are provided to and worn by employees when required to comply with any applicable order from the California Department of Public Health (CDPH). At the time of this writing, the CDPH has an order in effect requiring face coverings to by worn by all individuals in indoor settings, regardless of vaccination status, until February 15, 2022, unless extended further.
• Face coverings must be provided and made available by the employer for all employees, regardless of vaccination status. Respirators (such as N-95 masks) must be provided and made available for all unvaccinated employees.
• Screening: face coverings must be worn by employees and screeners at all indoor COVID-19 screenings, regardless of vaccination status.
• There are additional face covering requirements for employees following a workplace exposure, including an outbreak as defined under the ETS, and returning to work from quarantine or isolation.

Testing Protocols  

The revised ETS permits the use of at-home tests for confirming COVID-19 cases and testing following a workplace exposure or outbreak, with some caveats. At-home tests can only be self-administered if the employer or a telehealth provider observes and reads the test. The ETS provides examples of tests that satisfy this requirement to include “tests with specimens that are processed by a laboratory (including home or on-site collected specimens which are processed either individually or as pooled specimens), proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.”

Post-Exposure Notification

Employers are still required to notify employees of a potential COVID exposure but clarified that notice must be provided to “all employees who were on the premises at the same worksite as the COVID-19 case during the high-risk exposure period.” The employer must provide written notice to all employees within one business day. Employees can be notified electronically. This updated definition more fully aligns with the written notification requirements under California Labor Code 6409.6.

Testing for All Employees Following “Close Contact”

The employer is required to make COVID-19 testing available at no cost and during paid work time to all employees. This has been revised to include employees who are fully vaccinated and asymptomatic, but still does not include asymptomatic employees who have returned to work after having COVID within 90 days of the exposure.

Exclusion Periods and Return to Work Criteria  

The revised ETS exclusion periods and return to work criteria differ from that of the CDPH’s quarantine and isolation guidelines issued on January 8, 2022. Executive Order N-84-20 issued by Governor Newsom in December 2020 indicates that the recommend quarantine and isolation periods in the ETS (exclusion periods) are overridden by any applicable quarantine or isolation periods recommended by the CDPH or a local health department, if the periods in the ETS are longer than those recommended by the CDPH or local health department. Because the current CDPH quarantine and isolation periods are shorter than those in the revised ETS, employers will follow the quarantine and isolation guidelines issued by the CDPH.

• Persons Who Test Positive for COVID-19 (Isolation) - Everyone, regardless of vaccination status, previous infection or lack of symptoms: These individuals must stay home for at least five (5) days. The individual can return to work if they test negative on Day 5 or later and either symptoms are not present or they are resolving. If the individual does not get tested then they can return to work after Day 10 as long as symptoms are not present. If the individual has a fever then they cannot return to work until the fever resolves. These individuals must wear a mask for a total of 10 days.
• Persons Who are Exposed to Someone with COVID-19 (Quarantine) - Unvaccinated or vaccinated and booster-eligible but have not yet received their booster dose: These individuals must stay home for at least five (5) days and should test on Day 5. The individual can return to work if they test negative on Day 5 and they have no symptoms present. If the individual does not get tested then they can return to work after Day 10 as long as symptoms are not present. These individuals must wear a mask for a total of 10 days following the exposure.
• Persons Who are Exposed to Someone with COVID-19 (No Quarantine) – Individuals who are vaccinated and boosted or vaccinated and not yet booster-eligible:  These individuals are not required to quarantine but should test on Day 5 and wear a mask for 10 days. If the test is positive then they should follow the isolation guidelines as outlined above.

The ETS will be in effect for 90 days, through April 14, 2022, unless it undergoes a third re-adoption per   Executive Order N-23-21. The California Legal Services team at Employers Council will notify our members of any developments with respect to the Cal/OSHA ETS. Please contact our team at CAInfo@employerscouncil.org with any questions.