Cal/OSHA Will Not Adopt Federal ETS
On Friday, January 14th, 2022, the California/Occupational Safety and Health Administration Standards Board announced that the Second Readopted COVID-19 Emergency Temporary Standard (ETS) is now in effect and shall remain in place through April 14, 2022. One key factor to be aware of is that, considering the recent Supreme Court decision barring the OSHA ETS vaccine or test mandate, Cal/OSHA will not be adopting the Federal ETS. Instead, our own state agency has issued a new ETS that maintains many of the key provisions of the prior versions, but there are also several key changes.
Testing for Vaccinated Employees: While the earlier ETS permitted employers to exclude fully vaccinated employees from offering testing following outbreaks, the new ETS has removed that exclusion. As such, employers now must make testing available to all employees in the group that was exposed regardless of vaccination status.
Mask Requirements: The new ETS has adopted the latest guidance from the California Department of Public Health, which requires face coverings in all indoor public settings, regardless of vaccination status, through February 15, 2022.
Quarantine Period: In the past, previous versions of the ETS required any positive cases and close contacts to quarantine and be excluded from the workplace for 14 days. Given the new guidance from the CDC and CDPH, the new ETS has updated the duration of quarantine. While there are different circumstances for each situation (which can be determined here), the new exclusion period is 5 days.
Form of Testing: The previous ETS did not specifically determine or bar any testing method. The new ETS, however, states that it will exclude tests that are “both self-administered and self-read”. As such, this will effectively remove the at-home test method for the purposes of complying with the newly issued ETS.
This situation is highly fluid and will change on a day-to-day basis. A recent Executive Order that Governor Newsom issued allows a 3rd readoption of the ETS if the effective date does not go past December 31, 2022.
Cal/OSHA is scheduled for a board meeting on January 20, 2022, in which many of these key issues will be discussed. There are many potential outcomes, and given the recent Supreme Court decision, Cal/OSHA may begin to determine and issue their own state-level vaccination requirements.
Goyette, Ruano & Thompson has decades of experience in labor and employment law. The situation at hand is rapidly evolving, so please check back for updates and additional or subsequent posts regarding Cal/OSHA, COVID-19 regulations, and how it will impact you and your workplace.
If you have any questions, comments, or need representation, please contact Goyette, Ruano & Thompson at firstname.lastname@example.org or at (916) 851-1900.