California Employers Must Still Comply with the Newest Iteration of Cal/OSHA’s COVID-19 Emergency Temporary Standard Despite the Supreme Court’s Ruling Against the Federal OSHA Vax-or-Test Rule

By Amanda Osowski

On December 16, 2021, the California Occupational Safety and Health Standards Board (the “Standards Board”) adopted revisions to the COVID-19 Emergency Temporary Standards (“ETS”). The revised ETS will apply to nearly all California employers and take effect January 14, 2022, regardless of today’s U.S. Supreme Court ruling blocking Federal OSHA’s separate vax-or-test rule, as discussed below.

Background on the Cal/OSHA ETS
Cal/OSHA originally published the ETS in November 2020, which required employers to maintain an effective COVID-19 Prevention Program, pay “exclusion” pay to employees in certain circumstances, and comply with various testing, face covering, physical distancing, and quarantine protocols, among other requirements. Cal/OSHA revised the ETS in June 2021 to relax some of its original requirements considering the prevalence of vaccinations and the decline in COVID‑19 cases. The newly revised ETS backtracks on some of those relaxed requirements.

The ETS is now set to expire on April 14, 2022, although it likely will be extended up to December 31, 2022, if not longer, based on a recent Executive Order issued by the Governor. The ETS does not apply to employees working from home or working alone in a remote location of their choice.

Key Changes to the Cal/OSHA ETS Effective January 14
Although many core requirements of the June 2021 ETS remain unchanged, including the requirement to implement an effective COVID-19 Prevention Plan, the revised ETS includes several key changes to face covering, testing, and exclusion-from-work requirements. Perhaps the most significant changes center around requirements for fully vaccinated employees. Note, however, that Cal/OSHA has not yet included a third or booster dose requirement in its definition of “fully vaccinated.”

Face Coverings
The revised ETS alters the definition of “face covering” to clarify what is a compliant face covering. Compliant face coverings will now need to pass the “light test,” which means that light does not pass through the mask when held up to a light source. Additionally, the revised ETS includes language regarding how to accommodate employees with disabilities who cannot wear face coverings or a non-restrictive alternative, including ensuring that those employees maintain physical distancing and that they either be fully vaccinated or subject to weekly testing at no cost to the employee. Likewise, employees who cannot safely perform their job duties wearing a face covering must also physically distance and either be fully vaccinated or be tested weekly for COVID-19 at no cost to the employee.

Another change is that employers must now ensure that workplace screeners and employees being screened for COVID-19 must wear face coverings, regardless of vaccination status. Under the prior iteration of the ETS, face coverings were not required for fully vaccinated individuals. Finally, employers who provide transportation to employees, including any transportation to and from different jobsites, must now also provide face coverings to all employees in a shared vehicle, regardless of the occupants’ vaccination status.

As before, employers must continue to provide face coverings to employees who are not fully vaccinated, which must be worn indoors and in work vehicles with limited exceptions. Employers must also provide face coverings to employees upon request, regardless of an employee’s vaccination status.

COVID-19 Testing Requirements Now Include Fully Vaccinated Employees
Perhaps the most significant change to the revised ETS is the elimination of the testing requirement exception for fully vaccinated employees in the event of a COVID-19 “close contact” exposure (being within 6 feet of a COVID-19 case for 15 minutes or greater in any 24-hour period during the “high-risk exposure period”). Cal/OSHA previously exempted fully vaccinated, asymptomatic employees from its post-close-contact testing requirements. However, under the revised ETS, where an employee has close contact with a positive COVID-19 case, the employee must be provided with COVID-19 testing at no cost and during paid time, regardless of vaccination status, even if the exposed employee remains asymptomatic.

Additionally, in the event of an outbreak (3 or more employee COVID-19 cases within an exposed group) or major outbreak (20 or more employee COVID-19 cases within an exposed group), the employer must provide weekly (outbreaks) or twice-weekly (major outbreaks) testing to asymptomatic fully vaccinated employees in the exposed group. Previously, employees who were fully vaccinated and who remained asymptomatic did not need to be offered testing.

The revised ETS also includes changes to the definition of “COVID-19 test” to include tests with specimens processed by a laboratory, proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is done or observed by an employer. Under the revised ETS, tests may not be self-administered and self-read unless the employer observes the result or authorizes a telehealth proctor to observe and confirm the results. This means that employees won’t be able to verbally report results of an at-home test to their employer.

Return to Work After Close Contact Exposure
Like the former version, the revised ETS provides that an employee need not be excluded from the workplace if they were fully vaccinated before the close contact exposure or recovered from COVID-19 in the past 90 days and remain asymptomatic. Now, under the revised ETS, fully vaccinated employees with close contact exposure must wear a face covering and maintain six feet of distance from others for at least 14 days following the last date of close contact. These employees also must be provided information about any applicable precautions that the California Department of Public Health recommends employees take after having close contact with a COVID-19 case.

Employees who are not fully vaccinated and who had close contact exposure may generally return to work 14 days after the close contact if they remain asymptomatic. However, those employees may now return to work earlier if either 1) 10 days have passed since the last known close contact, the employee wears a face covering, and maintains six feet of distance from others until 14 days have passed since the last date of close contact; or 2) 7 days have passed since the close contact and the employee tests negative for COVID-19. The test must be taken at least 5 days after the last known date of close contact. The employee must wear a face covering and maintain six feet of distance from others until 14 days have passed since the last date of close contact. The 7-day option was previously limited to healthcare workers during critical staffing shortages.

Employer Notice Obligations
As before, employers must provide notice within one business day to employees who worked at worksites where there has been a COVID-19 case. The revised ETS contains a modified (and narrower) definition for “worksite,” which now excludes locations where an employee worked alone, personal residences, and other locations from which an employee was working remotely.

Fed/OSHA ETS Stayed by Supreme Court
Fed/OSHA under the Biden administration also recently issued its own ETS, as has been widely reported, essentially requiring that most employers with 100 or more employees require onsite workers to either be fully vaccinated or undergo weekly COVID testing before being allowed to work onsite.

In November 2021, the Fed/OSHA ETS was stayed by the Fifth Circuit. Subsequently, the Sixth Circuit lifted that stay. Various parties then filed applications with the Supreme Court requesting that the Court stay the Fed/ETS. Oral arguments took place on January 7, and today (on January 13), the Court issued a momentous decision finding, by a 6-to-3 majority, that the parties challenging the ETS were likely to prevail on their claim that Fed/OSHA had exceeded its statutory authority in enacting the ETS. Thus, the Supreme Court reinstated a stay of the Fed/OSHA ETS pending further proceedings in the lower courts. The Court did, however, allow a separate rule to take effect generally requiring vaccinations for workers in nursing homes, hospitals, and other facilities that receive Medicare and Medicaid payments from the federal government.

It is important to note that the Cal/OSHA ETS, as discussed above, is separate and apart from the Fed/OSHA ETS, and its validity is unaffected by the Supreme Court’s ruling.

The various federal, state, and local COVID-related rules and regulations are complex, confusing and rapidly changing, which has made full compliance quite difficult. Nonetheless, employers should immediately review their existing COVID-19 policies and procedure to ensure compliance with the revised California ETS and, if it remains in effect, the federal ETS. This is especially critical given the recent passage of another California statute, SB 606, which took effect on January 1, 2022. Under SB 606, Cal/OSHA is no longer limited to citing a single worksite for violations and can now issue citations for “enterprise-wide” violations for non-compliant policies, procedures, or practices in place at multiple worksites.

If you have any questions about this case or how best to comply with its holdings, please contact me or any GBG attorney.

Amanda Osowski