Third Adoption of The Emergency Temporary Standard

On Thursday, April 21st, Cal/OSHA officials met and approved the re-adoption of the COVID-19 Emergency Temporary Standard (ETS). The third iteration of the COVID-19 ETS includes several changes that California employers must prepare for. The changes are set to be in effect starting May 6, 2022, through the end of the calendar year.

Updated language to definitions of terms:

  • The definition of COVID-19 Test has been revised to provide that, to meet the return-to-work criteria, a COVID-19 test may be both self-administered and self-read only if another means of independent verification of the results can be provided (for example a time-stamped photograph of the results).
  • The definition of face coverings has eliminated the requirement that light cannot pass through the mask when it is held up to a light source.
  • The term and definition of fully vaccinated have been deleted.
  • A new term has been added: “returned case” which addresses employees who previously had COVID-19 and have natural immunity. Returned case refers to a COVID-19 case that returned to work and did not develop any COVID-19 symptoms after returning. A person shall only 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. If a period of other than 90 days is required by a California Department of Public Health (CDPH) regulation or order, that period shall apply.

Changes to current ETS language:

  • Make COVID-19 testing available at no cost, during paid time, to all employees with symptoms who had close contact in the workplace regardless of vaccination The employer is not required to make COVID-19 testing available to returned cases
  • Provide respirators to all employees upon request regardless of vaccination status.
  • Face coverings are no longer mandatory except when required by orders from CDPH or the local public health department. The new language also deletes the requirement that employees who are exempted from any applicable face-covering requirement (such as returning to work following a case or close contact) maintain six feet of social distance from others or be tested weekly. Now the language will merely require such employees to be tested at least once a week
  • The requirement to regularly clean or disinfect frequently touched surfaces and objects has been eliminated.
  • Return-to-Work criteria have been updated to align with the CDPH.
    • COVID-19 cases, regardless of the vaccination status or previous infection, who do not develop symptoms or whose symptoms are resolving, shall not return to work until (1) at least five days have passed, (2) at least 24 hours have passed without fever, and (3) a negative test is obtained on the fifth day or later (10 days if the employee is unable or chooses not to test).
    • COVID-19 cases, regardless of the vaccination status or previous infection, whose symptoms are not resolving may not return to work until (1) at least 24 hours have passed without fever, and (2) symptoms are resolving or 10 days have passed since symptoms began.
    • Regardless of vaccination status, previous infection, or lack of symptoms, a COVID-19 case shall wear a face-covering in the workplace until 10 days have passed since symptoms began or the date of their first positive test.
  • Changes to multiple COVID-19 infections and outbreaks include:
    • During an outbreak, employees who had close contacts shall have a negative COVID-19 test taken within three and five days after the close contact or shall be excluded and follow the return-to-work criteria of the ETS.
    • During an outbreak, an employer shall evaluate whether to implement social distancing. Where six feet of social distancing is not feasible, the employer shall evaluate implementing as much distance as possible between persons (as opposed to the current language which requires consideration of the use of cleanable solid partitions).
  • After a major outbreak, employees in the exposed group shall now be tested or shall be excluded and follow the return-to-work requirements of the ETS.

The following ETS Requirements Remain in Effect:

  • Notification requirements following a COVID-19 case in the workplace
  • Reporting and recordkeeping obligations
  • The obligation to maintain a Written COVID-19 Prevention Program.
  • The third iteration of the ETS maintains the same exclusion pay requirement as the other versions. Employers will be required to pay employees that have been excluded from work unless an exception applies.
  • Having a written COVID-19 Prevention Program
  • Investigation and responding process to COVID-19 cases in the workplace
  • Training and instruction to employees on preventive measures, benefits, symptoms, and company policies.

We recommend you review these changes and take the necessary steps to update your COVID-19 processes to comply by May 6. Please feel free to contact your Risk Advisor for guidance or questions regarding these changes.

Click here to view the proposed text of the 3rd adoption of the COVID-19 Emergency Temporary Standard.

This will likely require you to make changes to your Written COVID-19 Prevention Program and other pandemic workplace policies.


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