Cal/OSHA Proposes Substantial Changes to COVID-19 ETS

The California Occupational Safety and Health Administration (Cal/OSHA) is proposing substantial changes to its COVID-19 Emergency Temporary Standard. The changes range from new mandates for employers to new exceptions from prior requirements for vaccinated employees. The changes are broken down below.

General Requirements

Scope

  • clarifies “employees teleworking from a location of the employee’s choice, which is not under the control of the employer” are not covered by the ETS

Definitions:

  • “COVID-19 exposure” no longer used, but replaced with “close contact” – clarifies employees haven’t had close contact if they wore a respirator whenever they were within 6 ft of the COVID-19 case during the high-risk exposure period
  • COVID-19 case – removes the clarification that a person is no longer a COVID-19 case if a health care professional determines the person doesn’t have COVID in accordance with CDPH or the local health department
  • COVID-19 hazard – removes “among other things” from list of “potentially infectious materials”
  • “Exposed workplace” changed to “exposed group” – focuses on the group of individuals exposed to a COVID-19 case, not the location o new exemptions created for places where COVID-19 cases “momentarily pass through,” groups that don’t overlap at the workplace, and worksites where COVID-19 cases visit for less than 15 minutes
  • Face covering – clarifies that surgical masks, medical procedure masks, and respirators worn voluntarily qualify as face coverings
    • provides list of items that don’t qualify
  • Fully vaccinated – (new definition) – person who received, at least 14 days prior, either their second or only vaccine dose
    • clarifies employer must have documentation and vaccine must be FDA approved or have emergency use authorization
  • Respirator – (new definition) – respiratory protection device approved by NIOSH
  • Worksite – (new definition) (only used with regards to notice requirements) – building, store, facility, agricultural field, or other location where a COVID-19 case was present during the high-risk exposure period
    • clarifies it doesn’t cover a location that a COVID-19 case didn’t enter

Written COVID-19 Prevention Program

System for Communicating:

  • required to provide info on COVID-19 testing only “when testing is required”
  • removes the requirement that employers “inform affected employees of the reason for the COVID-19 testing and the possible consequences of a positive test”

Identification and Evaluation of COVID-19 Hazards

  • changes “fixed work locations” to “stationary work”
  • requires employers evaluate how to maximize “ventilation with outdoor air,” as opposed to “the quantity of outdoor air”
  • requires employers evaluate how to maximize the “highest level of filtration efficiency compatible” with their ventilation system and whether they should use portable or mounted HEPA filtration units or other air cleaning systems to reduce the risk of transmission
  • specifically references the CDPH’s Interim Guidance for Ventilation, Filtration, and Air Quality for Indoor Environments as an order or guidance employers should review

Investigating and Responding to COVID-19 Cases in the Workplace

  • changes the requirement that employers have procedures in place to verify employees’ COVID-19 case status, test results and onset of symptoms to having procedures in place to seek info from employees on these issues
  • clarifies employers have within one business day from the time they “knew or should have known of a COVID-19 case” to inform employees of possible exposure
    • requires notice be given to any authorized rep of any employee as well
  • clarifies notice must be written and “in a form readily understandable by employees”
    • provides examples of appropriate methods for notification
    • requires the notice include the disinfection plan
  • clarifies the notice must be sent to all employees “at the worksite during the high-risk exposure period,” as opposed to all who may have had exposure and their reps
    • requires verbal notification under certain circumstances
  • specifies independent contractors and other employees “at the worksite” must be given notice, not all those “present at the workplace”
  • requires testing be provided “during paid time,” as opposed to “during their working hours”
  • changes the testing requirement to include workers who had “a close contact,” as opposed to “potential COVID-19 exposure”
  • creates exceptions to the testing requirement for employees who were fully vaccinated and COVID-19 cases who returned to work and meet certain criteria
  • removes the requirement that medical records under this section not be disclosed or reported without the employee’s written consent to anyone within or outside the workplace “unless disclosure is required or permitted by law”
    • removes the exception for records that don’t contain individually identifiable medical info or from which such info was removed

Training and Instruction

  • adds required training on:
    • how to participate in the identification and evaluation of COVID-19 hazards
    • if respirators are provided for voluntary use, how to wear them and perform a seal check
    • the clarification that respirators protect users, while face coverings protect people around the user
    • the importance of vaccination
    • info on how to access testing and vaccinations
  • changes the specific requirement to inform workers about the FFCRA to more general “legally mandated sick and vaccination leave, if applicable”
  • training changed from specific “methods of physical distancing of at least 6 ft” to “any methods… implemented by the employer”

Physical Distancing

  • creates exemptions from physical distancing requirements for employees wearing respirators required by employers (and used appropriately) and locations where all employees are fully vaccinated, except employees with reasonable accommodations
    • for latter -– unvaccinated workers must be provided respirators for voluntary use and they must be tested at least once per week during paid time and at no cost

Face Coverings

  • not required when all persons in a room are fully vaccinated and don’t have symptoms, when employees are wearing respirators required by the employer (and worn appropriately), or when employees are fully vaccinated, when they’re outdoors, and don’t have symptoms
  • clarifies any testing under this provision will be at no cost to the employee and during paid time

Other Engineering and Administrative Controls

  • mandates employers install by July 31, 2021, partitions at work stations where an employee is assigned to work for an extended period where physical distancing can’t be maintained
    • exemption provided wherever an exception from the physical distancing requirements exists
  • clarifies that buildings with mechanical or natural ventilation shouldn’t maximize the quantity of outdoor air if “maximizing outdoor air” would cause a hazard, as opposed to “letting in outdoor air”
  • adds phones and headsets to the list of frequently touched surfaces that employers are required to regularly clear
  • removes the prohibition against or minimization of the sharing of PPE and various workplace items
  • calls for the cleaning and disinfection requirements of items used by a COVID-19 case during the high-risk exposure period if the “area, material, or equipment is indoors and will be used by another employee within 24 hours of the COVID-19 case,” as opposed to a blanket cleaning and disinfection requirement of such items used

PPE

  • calls on employers who provide respirators for voluntary use to encourage their use and ensure the respirators are the correct size for the employee
  • puts a deadline of July 31, 2021, on the requirement employers evaluate the need for respiratory protection when physical distancing isn’t feasible or can’t be maintained
  • requires employers provide employees working indoors who aren’t fully vaccinated with respirators for voluntary use starting July 31
  • starting 15 days after effective date – employers required to provide employees who haven’t been fully vaccinated with (and encourage the use of) respirators for voluntary use when employees are in a vehicle with at least one other person for 15 minutes or more

Testing of Symptomatic Employees

  • (new section)
  • starting July 31 – employers will make testing available at no cost to employees with symptoms who aren’t fully vaccinated, during their paid time

Reporting, Recordkeeping, and Access

  • clarifies outbreaks, in addition to COVID-19 cases, must be reported to local health departments whenever required by law
  • requires employers report all info as required by the Labor Code
  • removes the requirement that employers immediately report to the Division any COVID-19-related serious illnesses or death of an employee occurring in the workplace or in connection with any employment
  • pulls the requirement that COVID-19 records be made available to employees, their representatives, or as required by law with personal identifying info removed

Exclusion of COVID-19 Cases and Employees Who Had Close Contact

  • creates an exemption from the exclusion from the workplace requirement for persons who were fully vaccinated before they became COVID-19 cases and don’t have symptoms, when allowed to remain at the workplace by the local health department
  • changes the 14-day exclusion period for employees who had a close contact to “until the return to work requirements… are met”
    • exempts from the exclusion period employees who were fully vaccinated before close contact with a COVID-19 case and didn’t develop symptoms and COVID-19 cases who return to work and remained symptom free or never developed symptoms
  • adds wages to the list of things employers must maintain for employees who are excluded from the workplace • removes the option to consider benefit payments from public sources to maintain employee wages, rights and benefits
  • adds clarification that wages due under this section are subject to existing wage payment obligations and must be paid at the regular rate and on the regular day, and any unpaid wages are subject to enforcement through existing law
    • removes the exception for any period of time during which the employee is unable to work for reasons other than protecting against COVID-19 transmission 
    • adds an exception for employees who received disability payments or was covered by workers’ comp and received temporary disability
    • requires employers inform employees if an exception to this provision applies
  • removes the exception from the exclusion from work requirements for employees who haven’t been excluded or isolated by the local health department, if they are temporarily reassigned to work where they don’t have contact with others until the return to work requirements are met

Return to Work

  • clarifies that a negative test shall not be required for an employee to return to work “once a COVID-19 case has met the other return to work criteria”
  • identifies several situations when a close contact may return to work
  • establishes that, if a local or state health official doesn’t set a period of time for an individual’s isolation, quarantine, or exclusion order, then the period will be in line with the requirements outlined in this section, as opposed to the 10/14 day timelines previously used

Multiple Infections and COVID-19 Outbreaks

Scope:

  • clarifies section covers an “exposed group” as opposed to requiring a local health department to identify a workplace as a site of multiple infections or an outbreak

Testing:

  • changes testing requirement to focus on employees within the “exposed group” as opposed to covering “all employees at the exposed workplace”
  • creates exception from testing requirement for fully vaccinated employees
  • creates 90-day exemption from testing requirements for employees who had COVID-19 but were able to return to work and then did not develop the symptoms after returning
  • clarifies that negative COVID-19 tests won’t impact the duration of isolation or exclusion periods
  • changes requirement for continual testing from “at least once per week” to “once a week” and establishes these tests will be done at no cost to employees and during their paid time

Additional Requirements for Workplaces during Outbreaks:

  • Employers will be required to impose at least 6 ft between employees not wearing respirators
  • Exceptions to 6 ft requirement when six feet isn’t feasible (but must keep individuals as far apart as possible) and for momentary exposure while persons are in movement
    • provides examples of acceptable physical distancing
  • Requires employers install partitions at work stations where employees are working for extended periods of time and where physical distancing isn’t maintained at all times
    • examples provided of such instances

Ventilation

  • In buildings or structures with mechanical ventilation, requires employers to filter recirculated air with higher efficiency filters if compatible with system
  • When not compatible, employers required to consider portable or mounted HEPA filtration or other air cleaning systems

Respirators

  • requires employers provide respirators for voluntary use for employees in the exposed group who work indoors and aren’t fully vaccinated
    • required before July 31, 2021

Exclusion of Cases, Investigation of Workplace Illnesses, Notifications to Local Health Departments

  • employers required to comply with the general ETS requirements

Major Outbreaks

Scope:

  • clarifies section applies to 20 or more cases in an “exposed group” not an “exposed workplace”
  • designation no longer applies after fewer than 3 cases are detected in the exposed group for a 14-day period, as opposed to “no new cases detected in the workplace for a 14-day period”

Testing:

  • requirement only applies to exposed group, not all employees in the exposed workplace

Exclusion of Cases, Investigation of Workplace Illnesses, Hazard Correction, Notifications to Local Health Departments

  • employers required to comply with the general ETS requirements

Employer-Provided Housing

Scope

  • changes scope to cover “residents” as opposed to “occupants” of employer-provided housing
  • clarifies section does not apply to employees with “occupational exposure as defined” by regulations, when housing is used exclusively for COVID-19 cases, where the unit only houses one employee, or where all residents are fully vaccinated

Assignment of Housing Units

  • requires employers, to the extent feasible, reduce exposure by assigning residents to distinct groups and ensuring they remain separate from other groups

Physical Distancing and Controls

  • requires beds be spaced at least 8 feet between the corner of the head of each bed, as opposed to 6 feet apart in all directions
  • clarifies bunk beds cannot be used by “more than one person,” as opposed to at all
  • requires employers use portable or mounted HEPA filtration units in all sleeping areas with 2 or more residents who aren’t fully vaccinated (if MERV 13 or higher filter is not in use)

Cleaning and Disinfection

  • removes the requirements that housing units, kitchens, bathrooms, and common areas be “cleaning and disinfected at least once a day” and replaces it with the general requirement for employers to ensure the areas are “effectively cleaned to prevent the spread of COVID-19”
  • requires cleaning and disinfecting of housing units, kitchens, bathrooms, and common areas after a COVID-19 case was present during high-risk exposure period, if another resident will be there within 24 hours of the case
  • clarifies employers are required to “instruct residents not to share” kitchen items, as opposed to requiring them to “ensure” those items aren’t shared

Testing

  • requires employers communicate testing policies and procedures to residents

Cases and Close Contact/Exposure

  • removes the requirement employers provide a separate “cooking and eating facility” to COVID-19 exposed residents during quarantine
  • Exempts from the quarantine requirement:
    • fully vaccinated residents who don’t have symptoms
    • COVID-19 cases that meet return to work criteria and don’t have or never had symptoms

Employer-Provided Transportation

Scope

  • clarifies the section covers transportation during the course and scope of employment, “including transportation to and from different workplaces, jobsites, delivery sites, buildings, stores, facilities, and agricultural fields”
  • exempts from the section employees with “occupational exposure as defined” by regulations, vehicles in which all employees are fully vaccinated, and public transportation

Assignment of Transportation

  • requires employers, to the extent feasible, reduce exposure by assigning employees sharing vehicles to distinct groups and ensuring they remain separate from other groups during transportation, during work activities, and in employer-provided housing

Physical Distancing

  • Gives employers the option to leave one unoccupied seat between each person in the vehicle
  • Allows employers to measure required physical distancing (3 ft) between bodies or heads 
  • requires employers provide employees who aren’t fully vaccinated with (and encourage the employees to use) respirators for voluntary use

Cleaning and Disinfecting

  • employers no longer required to clean and disinfect high-contact surfaces used by passengers “before each trip,” but instead must be “cleaned to prevent the spread” of COVID
  • Employers required to clean and disinfect high-contact surfaces if used by a COVID-19 case during the high-risk exposure period, when the surface will be used by another employee within 24 hours of the COVID-19 case
  • Employers are required to disinfect all high-contact surfaces used by drivers if used by a COVID-19 case during the high-risk exposure period, if the surface will be used by another employee within 24 hours of the COVID-19 case

Ventilation

  • changes the exceptions for requiring windows to be open in the vehicle to “excessive outdoor heat” or “excessive outdoor cold,” rather than specifically when the outside temperature if “greater than 90 degrees” or “less than 60 degrees,” respectively

Precedence

  • Clarifies this section takes precedence when in conflict with the general ETS requirements