NEW FAQ’S ON CAL-OSHA’S ETS

Cal/OSHA Issues Updated FAQs on ETS

January 18, 2021

On January 8, 2021 Cal-OSHA published new Frequently Asked Questions to assist with the implementation of the Emergency Temporary Standards (ETS) that were issued in November 2020. The FAQs help clarify and answer questions that the agency received about the COVID-19 Prevention ETS since its implementation.

Specifically the following are the new FAQ’s: 3, 4, 6, 7, 10, 11, 12, 16, 17, 18, 19, 22, 23, 24, 28, 29, 30, 40, 42, 43, 44, 45, 49, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 65, 66, 67, and 68.

THE LINK TO THE FULL FAQ CAN BE FOUND HERE: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html

The FAQ’s include the following topics:

Scope & Coverage

The ETS regulations apply to employees who work both at home and at the employer’s workplace. However, there is an exclusion from coverage if there is only one employee who does not any have contact with other people. If an employee is permitted to telework and they choose to work at another location (e.g. hotel, vacation home) the employee is also excluded from coverage.

Enforcement

All employers are expected to comply with all provisions of the ETS. Cal/OSHA will enforce the ETS, taking into consideration an employer’s good faith efforts to comply. For the first two months the rules are in effect (i.e., through February 1, 2021), Cal/OSHA may issue citations but will not assess monetary penalties.

Vaccines

Once an employee is vaccinated, the ETS must still be followed for vaccinated persons as all prevention measures must continue to be implemented. Vaccines will likely be addressed in a future revision to the ETS.

Testing

For potential work-related exposure, the employer must provide the testing at no cost to the employee, during working hours. The employee must not incur any cost for the testing, which includes compensating the employee for the time to get tested as well as travel time to and from the testing site, along with mileage to and from the testing site.

“Working hours” for the ETS means the test must be provided during paid time. While the employee must be compensated for their time and travel expenses, the employer is not obligated to provide the test during the employee’s normal working hours.

Non-Outbreaks

In a non-outbreak setting, testing shall be provided to employees who were a “close contact” during the employee’s COVID-19 “high risk exposure period.” The high-risk exposure period is:

For symptomatic COVID-19 cases, from 2 days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
For asymptomatic but COVID-19 positive, from 2 days before until 10 days after the specimen for their first positive test for COVID-19 was collected.

In a non-outbreak setting, when one or more employees had a COVID-19 exposure at the workplace, employers must:

Notify all employees and employees’ authorized representatives who may have had COVID-19 exposure within one business day in a manner that does not reveal the COVID-19 case’s personal identifying information;
Offer testing at no cost to any employee potentially exposed to COVID-19 in the workplace and provide applicable benefit information;
Exclude from the workplace employees who test positive for COVID-19 and employees with COVID-19 exposure, and follow the requirements for preserving their pay and benefits;
Follow the return to work criteria for returning excluded employees to work
Investigate the exposure and address hazards; and
Follow all recordkeeping and reporting requirements for employee COVID-19 cases.

Outbreaks

When there is an outbreak (three or more COVID-19 cases in an “exposed workplace” within a 14-day period or identified as an outbreak by a local health department), an employer’s requirements include:

The same requirements for a non-outbreak setting, AND
Immediately provide testing to all employees in the “exposed workplace” and exclude positive cases and exposures from work; repeat the testing one week later; and
Continue testing employees at least weekly until the workplace no longer qualifies as an outbreak.

If one of the three persons who are COVID-19 positive worked in a different location within an establishment, an outbreak has not occurred. The “three or more cases” outbreak requirement is not limited to COVID-19 employee cases, but also includes anyone that has been in the exposed workplace during the high-risk exposure period.

When there is a “major outbreak” (20 or more COVID-19 cases in an “exposed workplace” within a 30-day period), in addition to the above requirements for a non-outbreak setting, the employer must:

Provide testing to all employees in the exposed workplace at least twice weekly and exclude positive cases and exposures until there are no new cases detected for a 14-day period;
Implement ventilation changes to mechanical ventilation systems including increasing filtration efficiency;
Evaluate whether HEPA air filtration units are needed in poorly ventilated areas;
Determine the need for a respiratory protection program or changes to an existing respiratory protection program under section 5144 to address COVID-19 hazards; and
Consider halting all or part of operations to control the virus.

An “exposed workplace” only includes the areas in the building, work location, working area, or common area used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.Areas a COVID-19 case passed through (i.e., traveled through en route to a work area and did not stop or stopped momentarily while wearing a face covering) are not considered in determining the area of an “exposed workplace.”

If the workplace has several non-overlapping work shifts, each shift may be considered a separate “exposed workplace” if the facility is well ventilated and the cleaning and disinfection requirements of the ETS are met between or before shift changes.
Measuring the High Risk Period: An employer should look to the testing date of the cases — any cases for which the tests occurred within a 14-day period would be reviewed to see if the other criteria for an outbreak have been met.
Exclusion From Work: Employers must exclude employees from work who (1) are COVID-19 cases, or (2) have had COVID-19 exposure from the workplace.

Return to Work

A COVID-19 case may return to work when any of the following occur:

For employees with symptoms all of these conditions must be met:

1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
2. COVID-19 symptoms have improved; and
3. At least 10 days have passed since COVID-19 symptoms first appeared.

For employees without symptoms, at least 10 days have passed since the COVID-19 case’s first positive test;
If a licensed health care professional determines the person is not/is no longer a COVID-19 case, in accordance with California Department of Public Health (CDPH) or local health department recommendations.

An employee exposed to a COVID-19 case in the workplace may return to work if they do not develop symptoms of COVID-19 after 10 days have passed since the date of last known exposure.

A negative test cannot be required for an employee to return to work.

Exclusion Pay and Benefits An employer must continue an employee’s pay and benefits while an employee is excluded from work — if the employee was exposed at work and is able and available to work.

An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, to the extent permitted by law, and may offset payments by the amount an employee receives in other benefit payments. If the exposure was not work-related there is no pay or benefit continuation obligation.

An employee is not entitled to exclusion pay if the employee with COVID-19 exposure from the workplace is unable to work because of reasons other than protecting persons at the workplace from possible COVID-19 transmission (e.g., a business closure, caring for a family member, disability, or vacation). Such employees may be eligible for other benefits, including Disability Insurance, Paid Family Leave, or Unemployment Insurance benefits.

Employees who are not entitled to “exclusion pay” (if an employee is unable to work because of his or her COVID-19 symptoms) may be eligible for Workers’ Compensation or State Disability Insurance benefits.

Duration of exclusion pay: The period the employee is quarantined, which could be up to 14 days. If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness and they may be eligible for temporary disability or other benefits.
Cal/OSHA does not consider an employee receiving temporary disability benefits through workers’ compensation to be considered “able and available to work” and would not be entitled to exclusion pay. However, if an asymptomatic employee is able and available to work but is not eligible to receive payment through workers’ compensation for lost wages during the period in which they are excluded from work, they should be provided exclusion pay.

Conclusion

The FAQ’s provide extensive information on the complex requirements of Cal/OSHA’s ETS. Due to the on-going pandemic and the continuing surge in cases, Cal/0SHA likely will step up their enforcement efforts, especially for those workplace locations that have an outbreak. Employers must take steps to implement the Emergency Temporary Standards at least in order to establish good faith compliance if an inspection occurs, resulting in a citation.

DISCLAIMER: Please note, the above is not an exhaustive list of all the changes to the law or resources for individuals and businesses. These new laws bring new challenges that often need to be handled on a case-by-case basis. Given the current fluid and rapidly evolving nature of the COVID-19 pandemic, this memo is provided solely as a reference tool to be used for informational purposes and is subject to change based on evolving information and it should not be construed or interpreted as providing legal advice related to any specific case or cases.

This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2021.