State-specific OSHA guidelines: California

Cal/OSHA has revised its emergency temporary standard (ETS) for COVID-19, to take effect on January 14, 2022. What follows is a summary of those changes.

Investigating and responding to COVID-19 cases in the workplace

Employers must continue to properly notify employees, employee representatives and any other workers at a worksite of possible COVID-19 exposures within one business day. This section was updated to give employers more clear instructions on how to notify workers who were at the same worksite as the COVID-19 case during the high-risk exposure period. Specifically, employers may provide notice “in the manner the employer normally uses to communicate employment-related information,” which may include e-mail or text messages. As before, employers should maintain a copy of this notice for its files.

The definition of “worksite” has been narrowed to exclude locations where someone worked alone, a worker’s personal residence, or “alternative work location chosen by the worker when working remotely.”

Face coverings

The revised ETS imposes additional requirements regarding “face coverings.” For face coverings other than a respirator, surgical mask or a medical procedure mask, the covering must be made of fabrics that “do not let light pass through when held up to a light source [and material] that completely covers the nose and mouth and is secured to the head with ties, ear loops or elastic bands that go behind the head.” 

In addition, “a face covering is a solid piece of material without slits, visible hole or punctures, and must fit snugly over the nose, mouth and chin with no large gaps on the outside of the face.”

Employers must ensure that employees who are exempted from wearing a face covering due to a medical or mental health condition or disability and cannot wear a non-restrictive alternative must physically distance at least six feet from others and either be fully vaccinated or tested at least weekly for COVID-19. The testing must be during paid time and at no cost to the employee.

Testing and Exclusion

A COVID-19 test may include an FDA-approved over-the-counter (OTC) test, administered in accordance with the authorized instructions, but—as with the Fed OSHA ETS—may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. In FAQs for its vaccine-or-test ETS, Fed OSHA has indicated that employee photographs of the OTC test results also do not satisfy the standard. Until Cal/OSHA issues an FAQ to the contrary, it is prudent to assume that California will follow the lead of Fed OSHA.

In addition:

• Employers are now required to make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before the “close contact” with a COVID-19 case 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
• Employees who have recently recovered from COVID-19 and those who are fully vaccinated are not required to be excluded from the workplace after “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.

Other return to work criteria

For those who are not fully vaccinated, the period of time before an employee can return to work after “close contact” has been revised (via FAQs issued on January 6, 2022) to be consistent with current California Department of Public Health guidelines:

• Employees who test positive for COVID-19 (regardless of vaccination status) must be excluded from the workplace for at least five days.
• Isolation can end and employees may return to the workplace after day five if symptoms are not present or are resolving, and a diagnostic specimen (antigen test preferred) collected on day five or later tests negative.
• If an employee is unable or chooses not to test and their symptoms are not present or are resolving, isolation can end and the employee may return to the workplace after day 10.
• If an employee has a fever, isolation must continue and the employee may not return to work until the fever resolves.
• If an employee’s symptoms other than fever are not resolving, they may not return to work until their symptoms are resolving or until after day 10 from the positive test.
• Employees must wear face coverings around others for a total of 10 days after the positive test, especially in indoor settings. Please refer to the section in this FAQ on face coverings for additional face covering requirements.