Cal/OSHA's Third Re-Adoption of the Emergency Temporary Standards

Cal/OSHA's Third Re-Adoption of the Emergency Temporary Standards

On May 6, 2022, Cal/OSHA’s third re-adoption of its Emergency Temporary Standards (ETS) went into effect and will remain in effect until the end of the year. In its latest iteration, Cal/OSHA removes the term “fully vaccinated” and no longer incorporates vaccination status for any purpose, including for determining who must quarantine after a COVID-19 exposure at the workplace. The updated ETS also revises its provisions on both exclusion of positive COVID-19 cases as well as close contacts at the workplace, among other changes that reflect the easing of concerns over how COVID-19 can be transmitted at the workplace. Compliance with the revised ETS is mandatory for employers governed by Cal/OSHA in California.

Because EP’s production company clients are the employers responsible for controlling worksite activities, providing a safe work environment, and for complying with Cal/OSHA, production companies should review the new standards with their legal advisers. Also, while the terms of the AMPTP’s Return-to-Work Agreement and the AICP’s Multi-Union Safety Agreement apply to covered unionized workers, Cal/OSHA’s revised standards apply to both non-union and unionized workers. Please be mindful that union agreements and local jurisdictions can implement stricter rules than the state.

Major Changes to the Third Re-Adoption of the Cal/OSHA ETS

I. The ETS No Longer Considers Vaccination Status for Any Purpose

While the prior version of the ETS both (1) defined “fully vaccinated” status, and (2) required employers to document a worker’s full vaccination status for certain purposes, the third re-adopted ETS no longer considers vaccination status for any purpose. In fact, Cal/OSHA has removed the definition of “fully vaccinated” in its latest iteration of the ETS altogether.

This means that:

• Any employee may now request a respirator for voluntary use, as opposed to only unvaccinated individuals;
• The employer must offer COVID-19 testing to any employee who had a close contact at the workplace (not including those who tested positive within 90 days of the workplace exposure), as opposed to only unvaccinated individuals; and
• Close contact return-to-work provisions no longer depend on vaccination status.

II. Cal/OSHA Amended the Requirements for Excluding Positive COVID-19 Cases at the Workplace

Pursuant to the third-readopted ETS, positive COVID-19 cases – regardless of vaccination status or previous infection – who do not develop symptoms or whose symptoms are resolving cannot return to the workplace until:

• At least five (5) days have passed since the date symptoms began or, if asymptomatic, from the date of the first positive test;
• At least 24 hours have passed since a fever of 100.4 degrees or higher has resolved without the use of fever-reducing medications; and
• A negative test from a specimen collected on the 5th day or later is obtained; or, if unable to test or the employer chooses not to require a test, 10 days have passed since the date symptoms began or, if asymptomatic, from the first date a test was taken that resulted in a positive diagnosis.

Positive COVID-19 cases – regardless of vaccination status or previous infection – whose symptoms are not resolving may not return to the workplace until:

• At least 24 hours have passed since a fever of 100.4 degrees or higher has resolved without the use of fever-reducing medication; and
• Symptoms are resolving or 10 days have passed from when symptoms began.

Regardless of vaccination status, previous infection, or lack of COVID-19 symptoms, a positive COVID-19 case must wear a face covering in the workplace until 10 days have passed since the date that symptoms began or, if asymptomatic, from the date of the first positive COVID-19 test.

III. Cal/OSHA Amended the Definition of a “Close Contact” and the Standard for Excluding Close Contacts

In the third re-adopted ETS, Cal/OSHA revised its definition of “close contacts” and exclusion rules for close contacts to reflect guidance from the California Department of Public Health (CDPH).

Current CDPH guidance from April 6 applicable to close contacts (available here) provides that:

• Asymptomatic persons exposed to COVID-19 – regardless of vaccination status – do not need to quarantine. Instead:
  
  ◦ They are recommended to test within 3-5 days after the last exposure to a positive COVID-19 case;
  
  ◦ They should wear a well-fitting mask around others for 10 days, and especially while indoors;
  
  ◦ If symptoms develop, they should test and stay home; and
  
  ◦ If results come back positive, they should follow the isolation recommendations above.
• Asymptomatic persons exposed to COVID-19 who were infected within the prior 90-day period need not be tested, quarantined, nor excluded from work unless symptoms develop.
• Symptomatic persons exposed to COVID-19 should:
  
  ◦ Self-isolate and test as soon as possible to determine infection status.
  
  ◦ If not tested, remain in isolation for 10 days after the day of symptom onset, and if they cannot isolate, wear a well-fitting mask for 10 days.
  
  ◦ Consider continuing self-isolation and retesting in 1-2 days if testing negative with an antigen test, particularly if tested in the first 1-2 days of symptoms.
  
  ◦ Continue to self-isolate if test result is positive and follow the recommended actions for those who test positive.

While Los Angeles County and the City of Los Angeles have aligned with the CDPH guidance, some counties in California have indicated they will not follow CDPH guidance. Employers should check the county in which their workers are located to evaluate which guidelines apply.

IV. Other Changes to the ETS

• COVID-19 tests taken for return-to-work purposes may now be self-administered and self-read, though only if another way to independently verify the results can be provided (i.e., a time-stamped photograph of the result).
• Contaminated surfaces are no longer considered a health hazard; therefore, cleaning and disinfection procedures have been removed from the updated ETS.
• There is no longer a requirement that face coverings must pass the “light” test to be acceptable (under the limited circumstances in which face coverings are now required at the workplace).

Here, you can find the full text of Cal/OSHA’s third re-adopted ETS. And Cal/OSHA’s updated FAQs are available here.

Employers are advised to consult with their labor and employment counsel to determine how Cal/OSHA’s COVID-19 updated standards impact their California workforce.

For any questions about this Alert, you may contact:



Pantea Lili Ahmadi, Senior Corporate & Employment Counsel | pahmadi@ep.com



Alan Wu, Director, Employment & Labor Relations Counsel | awu@ep.com



Joe Scudiero, Senior Vice President & Chief Labor Counsel | jscudiero@ep.com