On Thursday, April 21, 2022, the Standards Board of the California Division of Occupational Safety and Health (Cal/OSHA) adopted streamlined COVID-19 Emergency Temporary Standard (ETS) regulations after several months of debate regarding whether the state should maintain strict workplace COVID-19 safety protocols in light of consistent progress against the coronavirus.
The new regulations will become effective after review and approval by the state’s Office of Administrative Law (OAL), a process expected to be completed by May 6, 2022.
The proposed changes to the ETS regulations will relax many of the state’s current safety requirements, and also bring Cal/OSHA’s masking requirements in line with guidance from the California Department of Public Health (CDPH). The new ETS regulations:
- Eliminate the distinction between vaccinated and unvaccinated employees, for example regarding masking requirements and quarantine periods.
- Replace the requirement to provide barriers, partitions and physical distancing with requirements regarding improved air supply, ventilation and air filtration for indoor spaces.
- Remove surface cleaning and disinfecting requirements.
- Remove the requirement that unvaccinated employees wear masks in the workplace. Instead, consistent with CDPH guidelines, masks are required only in certain workplace settings: emergency shelters, cooling/heating centers, health care and long-term care settings, correctional facilities, and homeless shelters. Face coverings are no longer required on employer-provided transportation, although employers are required to “implement face covering policies that effectively eliminate or minimize transmission in vehicles” in line with CDPH guidance.
- Permit employees to present a time-stamped photo, rather than a video, as proof of a negative test.
- Allow employees who test positive to return to the workplace after 5 days, provided they wear a mask for another 5 days while at work.
Controversially, the new regulations do not include a definition of a “close contact” for determining whether an employee has been exposed to COVID-19 and is required to be excluded from the workplace. Instead, the proposed regulations would require employers to “review current CDPH guidance” on “quarantine or other measures to reduce transmission” and to “develop, implement, and maintain effective policies” to prevent COVID-19 transmission. Employers are concerned that the lack of a specific definition or standard will open them up to potential liability—and almost certain criticism—no matter how they interpret and apply CDPH’s guidance.
The newly-adopted regulations continue the requirement that employers provide exclusion pay, covering an employee’s salary while they are out of the workplace due to COVID-19 quarantine requirements after an exposure. Several employer groups, including the California Chamber of Commerce, raised concerns during the meeting that this requirement could create a “perverse incentive” for exposed workers to refuse testing in order to receive additional exclusion pay. Cal/OSHA staff indicated that employers can require testing as needed for workplace responsibilities, which they argued should limit this concern.
The Board made the changes to the ETS regulations in light of consistently lower rates of infection, ease of access to testing, and the general availability of vaccinations.
The new ETS regulations are expected to remain in effect until the end of the year, leading to extensive questions about what, if any, new COVID-19 and pandemic-related workplace safety rules should be expected for 2023. Board members, understandably, did do not attempt to answer the question with any certainty. Manatt will continue to monitor and provide updates on any related developments.