On December 16, 2021, Cal/OSHA’s Standards Board (OSHSB) voted to readopt a revised version of the COVID-19 Emergency Temporary Standards (ETS). This updated ETS will take effect January 14, 2022, and will remain in effect until April 14, 2022. An updated set of FAQs about the ETS will likely be released in the coming weeks.

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Important Changes

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Face Coverings

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As always, California employers are required to adhere to the most protective guidance, which may come from state (CDPH) and local (Los Angeles County) authorities. On December 17, the California Department of Public Health added a universal requirement for masking indoors, which is effective until January 15, 2022. Los Angeles County continues to require universal indoor masking until further notice (which will likely extend past the State’s current January 15 expiration date).

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The updated ETS adds a new requirement that face coverings “not let light pass through when held up to a light source,” unless they are clear masks used for accommodations purposes.

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Close Contacts: Testing, Exclusion, and Return to Work

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Cal/OSHA made several changes to bring the ETS in line with CDPH testing and exclusion recommendations. Importantly, after a close contact with a COVID-19 case and during an outbreak, employers must make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before the close contact occurred, even if they are asymptomatic. During outbreaks and major outbreaks, employers must now make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available to asymptomatic fully vaccinated employees in the exposed group.

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Employees who have recently recovered from COVID-19 and those who are fully vaccinated are not required to be excluded from the workplace after a “close contact” but must wear a face covering and maintain six feet of physical distancing for 14 calendar days following the last date of contact.

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Employees that are not documented as fully vaccinated who had a close contact and do not develop COVID-19 symptoms may return to work 14 days after their last known close contact, or may return early under the following conditions:

• 10 days after their last known close contact, the asymptomatic employee may return to work if they wear a face covering and maintain 6 feet of distance from others while at the workplace for 14 days.
• 7 days after their last known close contact, the asymptomatic employee tests negative for COVID-19 using a specimen taken at least 5 days after the last known close contact, and wears a face covering and maintains 6 feet of distance from others while at the workplace for 14 days.

Updated Definitions: COVID-19 Testing and Fully Vaccinated

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COVID-19 Test

Under certain circumstances, employees are required to test for COVID-19. These tests may no longer be both self-administered and self-read, unless they are observed by the employer or an authorized telehealth proctor.

Fully Vaccinated

Under the revised ETS, individuals who mix-and-match vaccine doses are considered fully vaccinated two weeks after receiving the second dose of any combination of two doses of a COVID-19 vaccine that is approved or authorized by the FDA, or listed as a two-dose series by the WHO. The second dose of this mix-and-match series must not be received earlier than 17 days after the first dose.

Generally, compliant vaccines must either have emergency use authorization from the FDA or be listed for emergency use by the (World Health Organization) WHO. Under certain circumstances, employees who were vaccinated as part of a clinical trial will be considered fully vaccinated under the updated ETS.

Resources for California Employers

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View a revised version of Cal/OSHA’s COVID-19 ETS here.

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View the California Department of Public Health’s Guidance for the Use of Face Coverings here.

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If you have questions regarding the application of any of the updated COVID-19 prevention recommendations and mandates to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick Maloney, Lisa Von Eschen, Samantha Botros, or Nicholas Grether.

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