Emergency Temporary Standard (ETS) – Cal/OSHA Update – Health & Safety

At the height of the COVID-19 pandemic, the California
Department of Occupational Safety and Health (Cal/OSHA) established
the Emergency Temporary Standards (ETS) to create a uniform set of
rules for COVID-19 prevention and outbreak mitigation in the
workplace. The ETS required employers to draft a written COVID-19
prevention plan that dictated when face coverings must be worn in
the workplace, when testing must occur, and when employees should
be excluded from the workplace due to infection or close contact
with an infected employee.

On December 15, 2022, Non-Emergency COVID-19 Prevention
Regulations were adopted and will become effective in the month of
January 2023 once approved by the Office of Administrative Law
(OAL). The ETS will remain in effect until the OAL replaces it with
a “permanent” regulation. Once approved, the permanent
regulation will be in effect for two years.

So what should California employers know about the upcoming
permanent regulation? Read on to see the key changes with the
forthcoming permanent regulation.

Definitions

Employers should regularly review the most up-to-date guidance
from the California Department of Public Health (CDPH) for the
current definitions for the following terms:

“Close Contacts”

• Anyone sharing the same indoor airspace for 15 minutes or more
  over a 24-hour period for indoor spaces of 400,000 or fewer cubic
  feet per floor; or




• Anyone that is within six feet of the COVID-19 case for 15
  minutes over a 24-hour period for indoor spaces of greater than
  400,000 cubic feet per floor.

“Infectious Period”

• For COVID-19 cases with symptoms, from two days before
  the onset of symptoms until 10 days have passed (or five days
  provided the employee tests negative on day five or later) and 24
  hours have passed without a fever; or




• For COVID-19 cases without symptoms, from two days
  before test specimen was collection through 10 days (or through day
  five provided the employee tests negative on day five or
  later).

“Returned Case”

• A returned case will be defined as a 30-day period (rather than
  a 90-day period) following the onset of symptoms or a positive test
  result.

New Notice Requirements

The permanent regulation will require employers to notify its
employees and independent contractors that have been in close
contact “as soon as possible” and in no case longer than
the time required to ensure that any exclusion requirements are
met. Another notable change to the notice requirements is that,
effective January 1, 2023, employers can now display a workplace
notice in lieu of individual notification. However, employers that
choose to do so may continue to provide individual notice in
writing to employees.

The notice must be posted within one business day and must be
posted for at least 15 days. If the employer posts other workplace
notices on an existing employee portal, the notice shall be posted
on the employee portal as well. The notice must be in English, and
the language understood by the majority of employees. Employers
must also continue to provide notice of COVID-19 cases and close
contacts to labor unions.

Changes to Outbreak Protocols

The permanent regulation will require employers to make
immediate testing available to employees in the exposed group (and
weekly thereafter) during an outbreak and offer twice weekly
testing during a major outbreak. The outbreak and major outbreak
requirements apply until there are “one or fewer” new
COVID-19 cases detected in the exposed group for a 14-day
period.

The permanent regulation will also require employers to report a
major outbreak to Cal/OSHA, although there is currently no guidance
as to the timing of when the report should be made. The permanent
regulation will also require that employer’s use HEPA filters
in indoor areas as occupied by employees for extended periods,
where ventilation is inadequate to reduce the risk of
contamination.

Changes to Recordkeeping and Reporting Requirements

The permanent regulation will no longer require that employers
report information about COVID-19 cases and outbreaks to local
public health departments. Employers will also be required to keep
a record of and track all COVID-19 cases with the employee’s
name, contact information, occupation, location where the employee
worked, the date of the last day at the workplace, and the date of
the positive test result or diagnosis. These records will need to
be maintained for three years after the effective date of the
permanent regulation. However, the permanent regulation will no
longer require employers to keep records of close contacts.

No Exclusion Pay

The rate of pay for exclusion pay is an employee’s regular
rate of pay for the pay period in which the employee is excluded.
These employees are entitled to exclusion pay, depending on the
length of the required exclusion period and how many days they were
scheduled to work during that exclusion period. The permanent
regulation, unlike the ETS, will no longer require employers to
continue to maintain an excluded employee’s earnings and
benefits.

Conclusion

As discussed above, the ETS will remain in effect until the OAL
approves the permanent regulation. In the meantime, California
employers should be prepared to comply with the new requirements
once the permanent regulation takes effect. Currently, it is
unclear when the effective date of the permanent regulation will be
so we will continue to monitor any developments, and encourage
employers to reach out to Donahue Fitzgerald’s Employment Attorneys with any questions
regarding these important changes.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.