On April 21, 2022 the Board for Cal/OSHA approved a third readoption of the Emergency Temporary Standards (ETS) that governs employer’s duties to prevent the spread of COVID-19.  The ETS applies to most employers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. The new version of the ETS will replace the current version, which expires today (May 6, 2022), and the new requirements are expected to remain in effect until December 31, 2022.

The new ETS relaxes and eliminates some of the existing COVID-19 requirements, incorporates the current masking, quarantine, and workplace exclusion requirements by the California Department of Public Health (“CDPH”), and adds some new definitions and overall provides more flexibility in dealing with the changing landscape of COVID-19. Cal/OSHA is expected to provide guidance on this new ETS in the form updated FAQs. Below are a few noteworthy changes in the revised ETS affecting almost all California employers.

• CDPH guidance now governs exclusion and return-to-work criteria for close contacts.
• Fully vaccinated definition is eliminated entirely. Requirements previously limited to unvaccinated employees now apply to all employees. By way of example, the new ETS requires employers to provide respirators to all employees upon request, while the prior version only required respirators be provided to unvaccinated employees upon request. Likewise, the prior ETS only required employers to make testing available to unvaccinated symptomatic employees, while the new ETS requires employers to offer testing to all symptomatic employees regardless of vaccination status. Be mindful that the distinction between vaccinated and unvaccinated may still apply to local public health rules that are more restrictive than the new ETS.  Plan for potential increased testing costs.
• New Returned Cases definition added: The new ETS creates a limited exemption for testing for COVID-19 cases in the 90 days after the initial symptom onset, or first positive test, if asymptomatic.
• Return-to-work testing may be self-administered and self-read. The result must include additional independent verification, such as a time-stamped photograph.
• Face Coverings. The “light test” for cloth face masks (“not let light pass through when held up to a light source”) has been eliminated. In the few remaining situations were face masking is required, the protocols are to be consistent with current CDPH’s requirements.
• Physical distancing (except during major outbreaks) and physical partitions requirements have been eliminated.
• Cleaning and disinfecting protocols have been eliminated.

California employers should familiarize themselves with the new ETS requirements and update their written policies to ensure compliance with the new requirements. Given the incorporation of the CDPH guidance, employers should regularly monitor CDPH’s guidance, and watch for  Cal/OSHA’s updated FAQs. Employer also need to stay abreast of local public health regulations that may be more stringent than the ETS and CDPH. Lastly, while many of the ETS requirements have been eliminated or modified, many requirements, including exclusion pay requirements, remain in place through the end of the year.