COVID-19, Regulatory Developments

California Weighing Third COVID-19 ETS Renewal

The California Occupational Safety and Health Standards Board will weigh a third renewal of the state’s COVID-19 emergency temporary standard (ETS) this week at its April 21 meeting. If adopted, the proposed ETS would emphasize hand-washing, personal protective equipment (PPE), testing and worker removal, and ventilation as hazard controls rather than cleaning and disinfection. The proposal also would establish strict requirements for face coverings.

Under California law, emergency rules typically can be renewed twice. However, Governor Gavin Newsom (D) issued a waiver on December 16, 2021, authorizing the standards board to consider a third readoption. If the board approves the emergency regulation proposed by the Division of Occupational Safety and Health (Cal/OSHA), the ETS would remain in effect until December 31.

The proposal would accept self-administered and self-read COVID-19 tests that can be verified—for example, with a time-stamped photograph of the test results.

The “COVID-19 case” definition would apply regardless of vaccination status, and the proposal’s return-to-work criteria also would apply regardless of vaccination status. Employers would have to comply with current guidance from the California Department of Public Health (CDPH) for workers returning to the workplace.

The proposal would add a “returned case” definition for workers who had COVID-19 and subsequently returned to work. Returned cases would include a COVID-19 case who returned to work and did not develop any COVID-19 symptoms after returning. A worker would be considered a returned case for 90 days after the initial onset of COVID-19 symptoms or, if the person never developed COVID-19 symptoms, for 90 days after the first positive test. The proposed ETS also would accommodate any CDPH regulation or order requiring a period other than 90 days.

Acceptable face coverings would include surgical masks, medical procedure masks, voluntarily worn respirators, or tightly woven fabric or nonwoven material at least two layers thick that completely covers the nose and mouth and is secured to the head with ear loops, elastic bands, or ties that go behind the head. Gaiters would need to be folded to form two layers. Balaclavas, bandanas, collars, scarves, ski masks, turtlenecks, or any single layer of fabric would not qualify under the proposal.

Employers would be required to provide employees with face coverings regardless of employee vaccination status. Employers also would be required to communicate face covering requirements to nonemployees to minimize workers’ exposure to SARS-CoV-2, the virus that causes COVID-19.

The proposal would allow employers to integrate their written COVID-19 prevention plans into their injury and illness prevention plans (IIPPs). California has an IIPP standard, requiring written workplace safety and health management plans, that has no federal equivalent.

The proposed ETS would apply to all workplaces except those with one employee who has no contact with another person, along with exemptions for teleworking employees and employees working from home.

The standards board also will consider readoption of the state ETS for multiple infections and COVID-19 outbreaks, major COVID-19 outbreaks, and prevention in employer-provided housing and transportation.

There is no federal COVID-19 standard. The Occupational Safety and Health Administration (OSHA) withdrew a vaccinate-or-test ETS after the U.S. Supreme Court issued an indefinite stay of the emergency rule. OSHA has a set of employer guidelines for COVID-19 health and safety. The agency utilizes the General Duty Clause of the Occupational Safety and Health Act to cite employer violations.

OSHA has proposed establishing a permanent healthcare COVID-19 standard based on its June 21, 2021, industry-specific ETS, which was withdrawn on December 27.

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