California’s Occupational Safety and Health Standards Board has voted for the third time to readopt and revise the Cal/OSHA COVID-19 Emergency Temporary Standards (“ETS”), which lay out guidelines for testing, masking, and other COVID-19 prevention measures for employers to follow with respect to their employees and workspaces.  The most recent ETS took effect on May 6.  Most of the changes will have little impact on current practice but are still instructive.

The major changes from the previous iteration of the ETS are as follows:

  • Elimination of Distinction Between Employees Who Are and Are Not “Fully Vaccinated.” In perhaps the most significant change, the new ETS delete all differentiation based on vaccination status.  This flattening has a number of repercussions, including:
    • Employers must now provide respirators upon request to all employees, not just those who are unvaccinated.
    • Employers must now provide face coverings to and ensure that they are worn, when required, by all employees, not just those who are unvaccinated.
      • However, in another change, this obligation to provide and wear face coverings applies now only to exposed employees in the event of a COVID-19 outbreak or when required by order of the California Department of Public Health (“CDPH”), not at all times.
    • All employees who cannot, when required, wear face coverings or a non-restrictive alternative for medical reasons must undergo weekly testing, on paid time and at no cost to the employee, even if they are fully vaccinated.
    • COVID-19 prevention measures are now required for all employer-provided housing and transportation, even if the housing or vehicle is occupied solely by fully vaccinated employees.
      • Among these prevention measures is that employers are now required to provide training on effective use of face coverings for employees who use employer-provided housing or transportation.
    • In the event of a COVID-19 outbreak at work, employers must provide tests to all employees in the exposed group, even those who are fully vaccinated.
  • Elimination of Objects or Surfaces from Definition of Hazard. In line with an increasing body of study that COVID-19 transmission is far more likely through the air than through surfaces, the revised ETS eliminate “objects or surfaces that may be contaminated” from the definition of “COVID-19 hazard.”
    • The new guidelines also remove the requirement that employers maintain a strict cleaning and disinfecting regimen in their workplaces as well as in employer-provided housing and transportation.
    • Finally, in the event of a COVID-19 outbreak, the revised ETS no longer require employees to be boxed off by “cleanable solid partitions” in environments where six feet of social distance is not possible.
  • New Return-to-Work Guidelines. The previous iteration of the ETS laid out strict requirements for the circumstances under which “COVID-19 cases” (i.e., people who have either tested positive with, been diagnosed with, or are subject to an isolation order regarding COVID-19) and “close contacts” to COVID-19 cases were permitted to return to the workplace.  The new ETS revamp these requirements as follows:
    • COVID-19 cases who are asymptomatic or whose symptoms are “resolving” (it is unclear what this means) may return to work 5 days after their symptom onset or first positive test and 24 hours after a fever, if the employee had one, came down without medication, so long as the employee tests negative on that fifth day.
      • Employers need not require this negative test, but in that case the employee must wait 10 instead of 5 days after symptom onset or first positive test before returning.
    • COVID-19 cases whose symptoms are “not resolving” (it is unclear what this means) may return to work only if (1) symptoms begin resolving or 10 days have passed from symptom onset and (2) 24 hours have passed since a fever came down without medication.
    • All returning COVID-19 cases, regardless of symptoms, must wear a face covering for 10 days since either their symptom onset or first positive test.
    • In a bright spot, the new ETS loosen the requirements for an acceptable COVID-19 test.  Previously, a test had to be observed by either the employer or a health proctor.  Self-administered and self-read tests now are acceptable so long as the employee can provide independent verification of the results, such as a time-stamped photograph.
    • The previous ETS also had detailed requirements for when “close contacts” to a COVID-19 case were permitted to return to work.  The new ETS delete those requirements and instead direct employers merely to “review current CDPH guidance” and develop their own policies for preventing COVID-19 transmission with respect to these employees.
      • The new ETS do require that in the event of a COVID-19 outbreak in the workplace, close contacts must test negative following the contact or otherwise follow the ETS’ return-to-work criteria starting from the date of contact.
    • In the event of a “major” (20 or more cases within an exposed group) COVID-19 outbreak, testing is now required of all exposed employees.  Exposed employees who do not undergo testing must follow the ETS’ return-to-work guidelines starting from the date the outbreak began.
    • Finally, the new ETS carve out a new category of cases in “Returned Cases,” defined as a case who returns to work and remains symptom-free after their return.
      • An employee is only characterized as a Returned Case for the first 90 days after either their initial onset of symptoms or their first positive test if they were asymptomatic.
      • Employers are not required to provide testing to Returned Cases except in the event of a major outbreak.
    • Relaxed Masking Requirements. As stated above, the new ETS do not strictly require employees to wear face coverings at all times when indoors, only when ordered by CDPH and, in the event of an outbreak, among exposed employees.
      • Similarly, employees are no longer strictly required to wear masks at all times inside employer-provided vehicles—employers instead must “implement face covering polices that effectively eliminate or minimize transmission.”
      • The ETS’ definition of “face covering” has also been amended to remove the “light test”—i.e., that an acceptable face covering cannot let light pass through when held up to a light source.

Per Governor Newsom’s Executive Order N-84-20, where the ETS’ exclusion periods exceed those issued by CDPH guidance, the CDPH periods will control.  We encourage employers to familiarize themselves with this latest guidance and will be sure to monitor any updates.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in nearly all industries, including multi-unit, multi-location, multi-employer and multi-union bargaining.

Photo of Dixie Morrison Dixie Morrison

Dixie Morrison is an associate in the Labor Department and a member of the Employment Litigation & Arbitration Group.