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On December 16, 2021, Cal-OSHA re-adopted its COVID-19 Emergency Temporary Standards (ETS) for a second time after previously doing so on June 17, 2021. While Cal-OSHA initially proposed language for a second re-adoption on October 20, 2021, the Cal-OSHA Board delayed voting to re-adopt the prior version. Now, Cal-OSHA has further revised the language to include enhanced restrictions for vaccinated employees and align closely with the California Department of Public Health’s (CDPH) recommendations. The new amendments will go into effect on January 14, 2022. 

The new re-adoption comes within 24 hours after the CDPH issued a new mask mandate requiring masks to be worn in all indoor public settings, regardless of vaccination status, effective December 15, 2021 through January 15, 2022. 

What Are the Key Changes in the Revised Regulations?

• Face Coverings Requirement – While most of the guidance on face coverings remains unchanged, both vaccinated and unvaccinated employees must wear face coverings. The ETS also requires that face coverings made of fabric must have at least two layers and not allow light to pass through when held up to a light source, except for clear face coverings for accommodation purposes.

• “Fully Vaccinated” Definition Modified Regarding Combination of Different COVID-19 Vaccines – The revised regulations define “fully vaccinated” to also include any combination of two doses of a vaccine as long as the second dose was not received earlier than 17 days (21 days with a 4-day grace period) after the first dose. Such combination doses must also be approved or authorized by the FDA or listed as a two-dose series by the World Health Organization (WHO) (i.e., a heterologous primary series of such vaccines).

• “COVID-19 test” Definition Modified Regarding Self-Administered/Home Tests – The new ETS clarifies that COVID-19 tests cannot be both self-administered and self-read unless by the employer or an authorized telehealth proctor.

• “Worksite” Definition Modified to Address Work-From-Home – The new ETS further clarifies that a “worksite” does not include locations where workers 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.

Employers must continue to properly notify employees, their representatives, and any other workers at a worksite of possible COVID-19 exposures within one business day. 

• Testing and Exclusion Regarding Vaccinated Employees – The revised regulations remove the distinction for testing regarding vaccinated employees.  Now, employers must 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.

During outbreaks and major outbreaks, employers are also required to make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available to asymptomatic fully vaccinated employees in the exposed group.

Moreover, employees who have recently recovered from COVID-19 (i.e. asymptomatic employees with close contact who have recovered from COVID-19 infection in the prior 90 days) and those who are fully vaccinated and asymptomatic 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 days following the last date of contact.

• Return to Work Criteria – The new ETS clarifies that a person who had a close contact but never developed any COVID-19 symptoms may return to work after 14 days have passed since the last known close contact unless either:
  1. Ten days have passed after the close contact and the employee was wearing a face covering while maintaining 6 feet distance from others at the workplace for 14 days following the last date of close contact, or
  2. Seven days have passed after the close contact if the employee tests negative for COVID-19 on or after 5 days following the last date of close contact, and the employee adheres to the face covering and social distancing requirements for 14 days following the last date of close contact.

The new ETS removes the return to work exemption for employees who are classified as essential critical infrastructure workers.

If you have any questions regarding this Alert, please contact the authors, David L. Cheng, partner in our Los Angeles office at dcheng@fordharrison.com, or Paul M. Suh, associate in our Los Angeles office at psuh@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.