California Weighing COVID-19 ETS Renewal

While White House officials continue to review a planned federal emergency temporary standard (ETS) for COVID-19 vaccination or testing tied to employment, California regulators are working on renewing the state’s COVID-19 ETS. The California Occupational Safety and Health Standards Board (OSHSB) is considering a second readoption of the state’s COVID-19 prevention ETS and released an early draft of the text under consideration.

COVID-19 ETS renewal

The state issued an ETS in November 2020 and readopted a revised standard June 17. If readopted, the ETS would be California’s final set of emergency COVID-19 rules. Under California administrative law, emergency standards remain in effect for 180 days. The board may twice readopt temporary standards for an additional 90-day period each.

Oregon and Virginia both have established permanent workplace COVID-19 standards.

The ETS covers all workplaces not covered by the state’s permanent airborne transmissible disease (ATD) standard. California’s ATD standard covers correctional and healthcare facilities and emergency services.

The draft ETS retains the bulk of the emergency rule’s requirements: a written COVID-19 prevention program based on a workplace infection hazard assessment, maximizing ventilation, evaluating indoor air filtration needs, and implementing COVID-19 prevention control measures. Employers would continue to perform periodic workplace inspections to evaluate hazards and the need for additional controls. The draft ETS also retains the rule’s face covering and its cleaning and disinfection requirements. The draft also retains the requirement for employers to provide respirators for voluntary use for unvaccinated workers.

The draft would update the return-to-work requirements to codify updated guidance from the California Department of Public Health (CDPH). The CDPH updated its guidelines for self-quarantine and self-isolation following exposure to COVID-19.

Under the CDPH guidelines, asymptomatic employees can discontinue self-quarantine after 7 days from the date of last exposure if a diagnostic specimen is collected after day 5 and they test negative or 10 days from the date of last exposure without testing.

Employees may return to work if they continue daily self-monitoring for symptoms 14 days from their last known exposure and follow all recommended nonpharmaceutical interventions (face coverings, hand-washing, avoiding crowds, and staying at least 6 feet from others) 14 days from their last known exposure.

The draft would remove an exemption from COVID-19 testing for fully vaccinated employees who do not have COVID-19 symptoms. The California emergency rules for employer-provided housing and transportation would remain largely unchanged.

The federal COVID-19 ETS applies to healthcare facilities and healthcare support services in which workers may be exposed to individuals with confirmed or suspected COVID-19 infections.

There also is an Occupational Safety and Health Administration (OSHA) National Emphasis Program (NEP) for the healthcare ETS and COVID-19 prevention at nonhealthcare workplaces. On September 9, the White House announced plans for a second OSHA ETS to require employers with 100 or more employees to vaccinate all their employees or test them weekly for COVID-19 infection.

The White House Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget continues to hold regulatory review meetings on the vaccination or testing ETS. The OIRA has scheduled several meetings this week with employers’ representatives.