California COVID-19 ETS Changes: Fewer Differences Between Vaccinated and Unvaccinated Employees

This blog post can also be found on our Coronavirus Resource Center.

Ahead of the April 21st vote on the final version of Cal/OSHA’s COVID emergency temporary standard (ETS), the Occupational Safety and Health Standards Board published the language the board was to consider. As of April 28, 2022, the previous version of the ETS was still posted on the California OSHA website.

The OAL (Office of Administrative Law) must first review and allow the new emergency standard wording to be put into place. As of April 28, 2022, the ETS was still listed on their site as under review. Assuming the ETS will be signed off on by the OAL, employers may wish to familiarize themselves with some of the changes within the wording of the proposed regulation.

The bulk of the ETS requirements in the previous version will remain in place, but some requirements have been decreased.

Some of the more important changes in the newest version include:

• The definition of “fully vaccinated” has been removed from the rule subsequently removing most, but not all, of the differences between how the regulation and by extension the CDPH requirements, treat vaccinated and unvaccinated employees.
• The term “high-risk exposure” is changed to “infectious period,” related to workplace COVID cases which is likely just a semantics issue without much effect other than to tie it to the CDPH usage of the words.
• The link between CDPH guidance and the OSHA ETS continues with specific language tying the requirements for isolation and quarantine from the CDPH to the ETS. It should be noted that the general guidelines from the CDPH for most employers differ from the guidelines for some healthcare settings and that there are additional guidelines listed for high-risk settings. A review of the CDPH site at the link above is recommended.
• The terminology “returned case” was added to the ETS and ties back to the 90-day period referenced in the CDPH guidelines. For employees who meet this definition, employers are exempt from making testing available post close contact.
• The ETS drops the requirement for face coverings for unvaccinated employees as well as the six-foot buffer required in the last ETS for employees exempted from facemask use. Such employees will still be required to test weekly.
• Cleaning and disinfection procedures have been removed from the engineering control requirements.
• The return-to-work section, c (10), has been updated and closely mirrors the current CDPH guidelines.
• Physical partitions are no longer referenced in the ETS.
• The light test for masks was controversial when introduced in the last ETS version, caused much conversation during the adoption meeting, and has been removed from this version.
• Self-administered and self-read tests are only allowed during return to work under c (10) if another means of independent verification of the results can be provided, such as a time-stamped photograph of the results.

The new ETS will be set to expire on December 31st. There is some speculation that California OSHA will attempt to make the standard permanent or simultaneously develop a permanent version. It may also be that we will see a permanent infectious disease standard promulgated post ETS expiration that will apply to more than just COVID.

Please feel free to call your Woodruff Sawyer account team with questions about the new ETS.