California Employers Face New Indoor Mask Mandate, COVID-19 ETS Changes, and New Isolation and Quarantine Requirements

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

On December 13, 2021 the CDPH issued a new mask mandate for all indoor public settings. The mask mandate will be in force from December 15, 2021, through January 15, 2022. California OSHA has tied their mask requirements to the CDPH so complying with OSHA now requires knowing the CDPH changes around masking. Counties that previously had a mask mandate, which applies to both vaccinated and unvaccinated individuals, can continue to follow their own mandate and exceptions. The CDPH additionally issued new quarantine and isolation guidelines for non-healthcare employees and California OSHA has likewise tied their guidelines to the CDPH guidelines.

Shortly after the mask mandate announcement, on December 16, 2021, the OHSB (Occupational Health and Safety Board) of California voted to re-adopt the California OSHA ETS on COVID-19. The standard changes will take effect on January 14th and run through April 14th. After that point, the ETS cannot be re-adopted again. A permanent standard would be required to further regulate specifically around COVID-19, and indeed permanent standard proposed wording is in the works. The permanent standard would likely be set to take effect sometime after the expiration of the newest ETS and that it would stay in place for two years. The wording for the permanent standard is still under review and does not appear to, at this point, include some of the new changes to the ETS, but that may also be incomplete.

The most immediate concern for employers is understanding the changes to the current ETS. A secondary concern may be doing your best to be involved in influencing the wording of any permanent standard draft that will take effect later in 2022.

A full review of the newest COVID ETS wording is encouraged, but the list below includes some of the stand out changes that will affect employers between January 14th and April 14th.

Current ETS Changes Include:

Section 3205

The definition of “COVID test” changed and matches the proposed fed standard which was stayed by the courts. The net effect of the change will be that employers cannot rely on self-testing and attestation. If the test is self-administered by the employee, the employer or an authorized telehealth provider will have to observe the test and outcome. The definition goes on to define other acceptable testing methodologies under (b)(6)(C).

Face coverings are now re-defined in a way that will likely make many cloth masks fall outside of the definition. Section (b)(8) states that cloth masks through which light can pass do not meet the definition. This is a difficult definition to understand and is not well defined. In the board meeting Cal OSHA promised to publish an FAQ around this definition soon. For employers, be ready to consider having to provide additional face coverings of the surgical type or medical procedure type if the FAQ does end up disqualifying many of the cloth masks now being used.

The definition of fully vaccinated, (b)(9)(B), was changed to allow specifically for mix and match between vaccine producers. Of note is that the definition requires the employer to have documented the vaccine status for the employee to be considered fully vaccinated.

The definition of worksite, (b)(12), was changed to reflect that if an employee works by themselves, at their personal residence, or an alternative location chosen by the employee while working remotely, then close contact and exposure regulations do not apply to those employees.

Under (c)(2)(B), the allowance for vaccinated employees to conduct screening without a mask on was removed. They must be masked to conduct screening.

In section (c)(5) exceptions, employers must now make no cost testing during paid time available to vaccinated employees who have had close contact in the workplace (not just unvaccinated employees). The exception for those who have returned to work post positive test or post recovery from symptoms, for a period of 90 days, remains intact.

(c)(6)(E) now outlines additional requirements for the employer for those who have an exception to mask wearing based on (c)(6)(D)(4). If their condition does not allow for a non-restrictive alternative, they must maintain six feet of distancing and be either fully vaccinated or undergo weekly testing on the employer’s time and at the employer’s cost.

(c)(9)(B)(1), (2), and (3) have been changed regarding exceptions to exclusion measures. These are important to know secondary to the requirement to provide exclusion pay and position protections for employees experiencing a work-based exposure or illness leading to exclusion.

In a closely related topic and as mentioned in the opening paragraph of this blog, California OSHA has also tied the number of days of isolation and quarantine to the California Department of Health isolation and quarantine requirements and California OSHA’s requirements will now change as the CDPH changes their requirements. There are currently circumstances that allow for as little as zero days out of work post exposure for fully vaccinated employees or as few as five days out of work post positive test, and or symptoms occurring, depending on resolution of symptoms and other factors. This allowance hinges on the use of a mask at work up to day 10 as well as on a negative test at day five.

Exceptions include:

• Fully vaccinated employees who have had close contact do not need to be excluded as long as they do not develop symptoms, they wear a face covering, and maintain six feet of distancing from all other employees for 14 days.
• COVID-19 cases who have returned to work after testing positive or developing symptoms of COVID-19 for a period of 90 post positive test or onset of symptoms (whichever applies). Both must wear a face covering and maintain six feet of distancing for at least 14 days, while at work.
• If either exemption is utilized the employer must provide the employee with information from the CDPH related to persons who have had close contact.

Section (c)(10)(D)(1) (a) and (b) provide for a 14-day exclusion unless one of two different return to work exclusion options apply, in which case the exclusion can be shortened. Again, employers seeking to limit their exposure to exclusion pay requirements and get their employees back to work more quickly should know these exceptions. Neither exemption applies if the employee develops symptoms. See the rest of this section for clarification.

• 10 days: An employee can return to work once 10 days have passed since the close contact and the employee wears a face covering and maintains social distancing through 14 days.
• 7 days: An employee can return to work once seven days post close contact have passed if a negative test is produced at least five days post close contact and the employee wears a face covering and maintains social distancing through 14 days.

Section 3205.1

Section 3205.1 is specifically applicable to multiple infection and outbreak scenarios.

The exception for vaccinated employees has been removed from the testing requirements during outbreaks. See section (b)(B). Employers must make COVID-19 testing available to both vaccinated and unvaccinated employees during an outbreak.

Section 3205.3

In this section, which is applicable to employer provided housing, exceptions for fully vaccinated employees regarding ventilation (c) and quarantine (h)(1) have been removed.

COVID-19 testing is required for all residents of employer provided housing where three or more COVID-19 cases occur in a 14-day period.

Section 3205.4

Employers must now provide face coverings for both vaccinated and unvaccinated employees utilizing employer transportation.