Last month, California’s Occupational Safety and Health Standards Board (“OSHSB”) readopted and revised the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (“ETS”).  By and large, OSHSB’s revised ETS retain most of the key requirements of the prior version, which had last been updated last June (as we reported here).  However, the revised ETS, which will take effect on January 14th, also aim to conform the existing rules to the latest requirements and recommendations from the California Department of Public Health (“CDPH”). We have summarized some of the more notable updated provisions below:

  • Clarified Exposure Notification Obligations. The revised ETS clarify the required procedures for employers to notify employees who were potentially exposed to COVID-19 at work. Employers are now required to provide a readily-understandable, written notification that the employee may have been exposed within one business day of the exposure, without revealing any personally identifying information of the underlying COVID-19 case. Employers may notify workers via personal service, email, text message, or any other method that ensures receipt within the one business day deadline.
  • Expanded Testing Requirements for Exposed Employees. Employers must also provide COVID-19 testing at no cost to employees during paid time to all employees who had a close contact with a COVID-19 case in the workplace—including to fully vaccinated and asymptomatic employees, which is a departure from the prior version of the ETS.  However, employers are not required to provide testing during paid time to employees who have returned to work following a confirmed COVID-19 case and who remained free of COVID-19 symptoms.
  • New Exceptions to Exclusion Rules for Some Employees. The updated ETS purport to revise the exclusion rules for employees who had a “close contact” with a COVID-19 case in the workplace; however, as explained below, the updated ETS’s timeframes are not controlling requirements.  The updated ETS provide that exposed employees who never developed symptoms may return to work:  (1) 14 days after the last known close contact; (2) 10 days since the last known close contact if the employees wear a face covering and maintain six feet of social distance from other employees until 14 days have passed since the contact; or (3) seven days after the last known close contact if the employees test negative for COVID-19 with a specimen taken at least five days after the last known close contact, and so long as such employees wear face coverings and socially distance for 14 days.  Similarly, the revised ETS provide that asymptomatic employees who recovered from COVID-19 within the last 90 days do not need to be excluded from work following a close contact if they wear a face covering and socially distance for 14 days.

Adding additional confusion into the mix is Governor Newsom’s Executive Order N-84-20 from December 14, 2020, which states that where the quarantine and isolation periods required by the ETS are longer than what is required by the CDPH’s isolation and quarantine guidance, the CDPH guidance prevails.  Thus, notwithstanding the revised ETS language, the CDPH’s guidance controls.  The latest CDPH guidelines on quarantine and isolation mandate that:

  • Employees who test positive should isolate for at least five days, regardless of vaccination status, previous infection, or lack of symptoms. They may end isolation after five days if they have no symptoms or resolving symptoms and they test negative on the fifth day following exposure. Otherwise, they must isolate for ten days.
  • Unvaccinated employees who are exposed to COVID-19 must stay home for five days, and can end isolation if they are asymptomatic and test negative on the fifth day (but must continue to wear a face covering for ten days following initial exposure). Otherwise, they must isolate for ten days.
  • Exposed employees who are vaccinated and booster-eligible but who have not yet received their booster shot can end isolation if they are asymptomatic and test negative three to five days from exposure (but must continue to wear a face covering for ten days following initial exposure). Otherwise, they must isolate for ten days.
  • Exposed employees who are boosted or who are vaccinated and not yet eligible for a booster (i.e., “up to date” employees) are advised to test on their fifth day following exposure and, if they remain asymptomatic, are not required to isolate so long as they continue to wear a face covering for ten days following exposure.

Employers should familiarize themselves with the changes and make sure they are ready to implement the new requirements.  Cal/OSHA likely will issue updated guidance in the coming weeks.

Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination…

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Photo of Philippe A. Lebel Philippe A. Lebel

Philippe (Phil) A. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, defamation, trade secrets, and breach of contract litigation, in both the single-plaintiff and class- and/or representative-action context, at both the trial and…

Philippe (Phil) A. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, defamation, trade secrets, and breach of contract litigation, in both the single-plaintiff and class- and/or representative-action context, at both the trial and appellate level, and before administrative agencies.

In addition to his litigation work, Phil regularly advises clients regarding compliance with federal, state and local employment laws, and assists a variety of companies and financial firms in evaluating labor and employment issues in connection with corporate transactions. Phil also has experience assisting employers with sensitive employee investigations and trainings.  Phil also represents employers in connection with labor law matters, such as labor arbitrations and proceedings before the National Labor Relations Board.

Phil has assisted clients in a wide array of sectors including in the biotech, education, entertainment, financial services, fitness, healthcare, high-tech, legal services, manufacturing, media, professional services, sports, and staffing industries, among others.

Phil regularly speaks on emerging issues for employers and has been published or quoted in Law360, the Daily JournalThe Hollywood ReporterBusiness Insurance, and SHRM.org regarding a variety of labor and employment law topics.

During college, Phil worked on political campaigns in Atlanta, Georgia and Birmingham, Alabama, and was an intern with the National Gay and Lesbian Task Force and the Gay and Lesbian Victory Fund. Phil is a former member of the Board of Directors of the AIDS Legal Referral Panel.

Morgan Peterson

Morgan Peterson is a law clerk in the Labor Department and a member of the Employment Litigation & Arbitration Group.