The California Division of Occupational Safety and Health (“Cal/OSHA”) Standards Board again amended the agency’s COVID-19 Prevention Emergency Temporary Standards (“ETS”), effective January 14, 2022.

This is the second time in the last year Cal/OSHA has imposed new obligations on all employers. The first draft of the ETS went into effect in November 2020 and revised in June 2021.

The latest changes were released December 13, 2021. Depending on the U.S. Supreme Court’s review of the Federal OSHA COVID mandates on employers of 100 or more workers there will be more changes in the coming months.

The California ETS keeps much of the 2021 rules in place, with the revisions adding another layer of complexity to the burden facing employers.

For example, the January revisions still require employers to establish, implement, and maintain a COVID-19 Prevention Program (“CPP”), although that CPP must now be updated to reflect Cal/OSHA’s latest changes. Employers must train employees on up-to-date COVID-19-related information, including the employer’s policies and procedures, COVID-19 prevention, and benefits to which employees may be entitled.

Under the heading of the more things change, the more they stay the same the revised ETS sets rules for various COVID-19-related protocols that employers must follow, including:

Face Coverings

  • Employers must supply acceptable “face covering” but the definition of “acceptable” is much tougher. Now face coverings may be tightly woven fabric or non-woven material of at least two layers, but such masks should not let light pass through when held up to a light source.
  • Aface covering must completely cover the nose and mouth and be secured to the head, cannot have any slits or holes, and must fit snugly.
  • Some employees may be exempt from face covering requirements due to a medical or mental health condition or disability. In circumstances where the employee would otherwise be required to wear a face covering but for this exemption and where the employee cannot wear a non-restrictive alternative, like plastic face shields. 
  • Cal/OSHA fell in line with the California Department of Public Health (CDPH) issued binding guidance requiring all Californians statewide to mask indoors irrespective of vaccination status until at least January 15 unless extended.

Covid Testing

  • CDPH also expanded the definition of “COVID-19 test” for consistency with the definition in the Federal ETS. With this change, the ETS expands the definition including home tests and over-the counter tests. To make it more confusing, the definition also excludes tests that are self-administered and self read, unless observed by the employer or authorized telehealth proctor. Cal/OSHA has yet to issue guidance on this change, which is causing confusion to employers.
  • Cal/OSHA has not yet included a third or booster dose requirement in its definition of “fully vaccinated.”
  • Since it turns out that the vaccines don’t keep the “fully vaccinated” from catching the disease that exemption has been eliminated from certain aspects of the revised ETS. 

The full package of changes is available on line at:

//www.dir.ca.gov/OSHSB/documents/Dec162021-COVID-19-Prevention-Emergency-txtcourtesy-2nd-Readoption.pdf

It is especially important that employers ensure their CPP, and COVID-19-related policies and procedures are compliant now that, as we reported last month, Cal/OSHA is no longer limited to citing a single worksite for violations and can now issue citations for “enterprise-wide” violations for non-compliant policies, procedures, or practices in place at multiple California worksites.

For additional information contact the ECA office at 714/937- 5000.