California’s new COVID-19 ETS (Emergency Temporary Standards) was effective on June 17, 2021, at the close of yet another tumultuous day in government rulemaking. The ETS makes significant revisions to the COVID-19 regulatory standards that companies have battled with since California’s Cal/OSHA (Division of Occupational Safety and Health) first ETS went into effect about a year ago.
The amended ETS specifies vaccination criteria for both vaccinated and unvaccinated employees. While the OSHA board approved the proposed ETS amendments, it did so with misgivings about a few items.
The California standard mandates documentation of immunization status, but it does not define how you should do it. Employees must submit evidence of immunization and can self-assert, with the employer required to keep track of who self-asserts.
Although many of the ETS’s essential standards have not changed, there have been a few significant adjustments that may affect California firms. The most recent changes to the ETS were made in response to the state’s “reopening” and new CDC advice. The following are the most significant changes.
Employers must still provide face coverings for employees who are not entirely vaccinated under the updated ETS, which must be worn indoors or in automobiles, with limited exceptions. Employers must also supply facial coverings to employees who want them, regardless of whether or not they have been vaccinated.
However, in accordance with terminology in the federal OSHA’s own ETS (“Federal ETS”), what constitutes a permissible “facial covering” has been altered. Face masks, for example, can be made of tightly woven cloth or nonwoven material with at least two layers, but they should not allow light to pass through when held up to a light source.
Gaiters are now permitted to be worn. However, they must be two layers of cloth or folded into two layers. A facial covering must fully cover the mouth and nose and be attached to the head; there must be no slits, and the face-covering must fit tightly.
The COVID-19 test definition has been updated to match the Federal ETS definition. The definition covers home and over-the-counter testing, but it still excludes self-administered tests unless viewed by an employer or a health care provider. Cal/OSHA has yet to advise on this change, which will undoubtedly lead employers to wonder if they can still meet the obligation to provide COVID-19 testing to workers in specific scenarios by giving them a home test. Furthermore, it is unclear whether companies must fire employees who test positive on self-administered tests.
The definition of “completely vaccinated” has been amended to include more instances in which a worker may have been immunized, such as vaccine experiments and vaccine manufacturer mixing. Cal/OSHA’s definition of “completely vaccinated” does not currently include a third or booster dosage requirement.
Certain sections of the updated ETS have removed the “completely vaccinated” exclusion.
Workplace Exclusion and Return to Work
Removing personnel from the workplace due to close contact is one of the most significant improvements in Cal/updated OSHA’s ETS. As previously stated, any personnel who have had direct contact with a confirmed COVID-19 case must be excluded from the organization. Employees who were completely vaccinated before direct contact or cleared from COVID-19 in the previous 90 days and asymptomatic are not barred from work under the amended ETS. Direct contacts must now don a face covering and keep a six-foot distance from other employees for at least two weeks after the last day of direct contact to stay at work.
COVID-19 Testing with ARCpoint Labs of Roseville and Rocklin
Meanwhile, let us all continue to protect ourselves and others from infection by testing if we suspect we have come in touch with someone who has COVID-19.
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