The California Occupational Safety & Health Standards (Cal/OSHA) Board recently voted to revise and readopt the COVID-19 emergency temporary standards (ETS) for the third time. The third revised ETS is expected to take effect the first week of May and will remain in place until December 31, 2022.

The changes between the third revised version of the ETS and the current second version are summarized below.

1. Replaces the term “high risk exposure period” with “infectious period.”
   • The definition remains largely the same, except it now incorporates any potential order by the California Department of Public Health (CDPH) that provides a different definition.
   • As stated in the third revised ETS, “infectious period” means the following (unless it is otherwise defined by CDPH regulation or order, in which case the CDPH definition shall apply):
     1. For COVID-19 cases who develop COVID-19 symptoms, from two days before they first develop symptoms until all of the following are true: it has been 10 days since symptoms first appeared; 24 hours have passed with no fever, without the use of fever-reducing medications; and symptoms have improved.
     2. For COVID-19 cases who never develop COVID-19 symptoms, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.

2. Eliminates the definition of and references to “fully vaccinated.”
   • In the second revised ETS, certain requirements varied depending on whether someone was fully vaccinated. This criteria is being eliminated.
   • For example, the third revised ETS requires employers to provide respirators upon request by an employee, regardless of vaccination status, and to provide training on how to use the respirator. While under the second revised ETS, employers only needed to provide respirators if the employee who requested it was not fully vaccinated.
   • For further example, the third revised ETS requires employers to make COVID-19 testing available to symptomatic employees at no cost and during an employee’s paid time regardless of vaccination status. Under the second revised ETS, this only applied to employees who were not fully vaccinated.

3. Eliminates the requirement that face coverings pass the “light test.”
   • This change is in response to concerns that face coverings considered most effective, such as KN95s, did not pass the requirement under the second revised ETS that face covers not allow light to pass through them.

4. Creates a definition for “returned case” of COVID-19 to the workplace. 
   • This was previously an undefined term, but a concept that existed in the second revised ETS. Now, we have a specific definition for it.
   • As stated in the third revised ETS, a “returned case” is when a COVID-19 case returned to work (in compliance with the ETS’s criteria to return to work, as set forth below in No. 9) and did not develop any symptoms after returning to work. 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 CDPH regulation or order, that period shall apply.
   • The definition of a “COVID-19 case” is unchanged, and continues to mean a person who:
     1. Has a positive COVID-19 test; or
     2. Has a positive COVID-19 diagnosis from a licensed health care provider; or
     3. Is subject to a COVID-19 related order to isolate issued by a local or state health official; or
     4. Has died due to COVID-19, in the determination of a local health department or per inclusion in the COVID-19 statistics of a county.

5. Employers are not required make COVID-19 testing available to a “returned case.”
   • Employers had an obligation to make COVID-19 testing available at no cost, during paid time, to all employees who had close contact in the workplace with a COVID-19 case. Now, if one of those close contacts is a “returned case,” the employer does not need to make testing available to the “returned case.”

6. Modifies the requirements for employees who had an exemption from wearing a face covering (when otherwise required to wear one, e.g., after a close contact or as required in certain industries) so that any such employee has to be tested weekly.
   • Under the second revised ETS, such employees needed to maintain six feet of distance from others and either be fully vaccinated or tested weekly. Now, any such employee must simply be tested weekly. 

7. Eliminates the specific cleaning and disinfecting protocols that were in the prior versions of the ETS.

8. Changes the requirements for the exclusion of COVID-19 cases from the workplace. 
   • The third revised ETS eliminates the independent criteria for exclusion of a close contact from the workplace and instead states that employers must review the current CDPH guidance related to quarantining of persons with a close contact and implement procedures to prevent transmission of COVID-19 by close contacts.
   • Employers should be aware that the third revised ETS does not change the requirement to pay “exclusion pay” to close contacts that must be excluded from the workplace.

9. Changes the “return to work” criteria for COVID-19 cases to conform more closely to the CDPH criteria.
   • The new criteria are as follows:
     1. COVID-19 cases, regardless of vaccination status or previous infection, who do not develop COVID-19 symptoms or whose COVID-19 symptoms are resolving, shall not return to work until:
        1. At least five days have passed from the date that COVID-19 symptoms began or, if the person does not develop COVID-19 symptoms, from the date of first positive COVID-19 test;
        2. At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever reducing medications; and
        3. A negative COVID-19 test from a specimen collected on the fifth day or later is obtained; or, if unable to test or the employer chooses not to require a test, 10 days have passed from the date that COVID-19 symptoms began or, if the person does not develop COVID-19 symptoms, from the date of first positive COVID-19 test.
     2. COVID-19 cases, regardless of vaccination status or previous infection, whose COVID19 symptoms are not resolving, may not return to work until:
        1. At least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without the use of fever-reducing medication; and
        2. Symptoms are resolving or 10 days have passed from when the symptoms began.
     3. Regardless of vaccination status, previous infection, or lack of COVID-19 symptoms, a COVID-19 case shall wear a face covering in the workplace until 10 days have passed since the date that COVID-19 symptoms began or, if the person did not have COVID19 symptoms, from the date of their first positive COVID-19 test.
     4. The requirements in subsections (A) and (B) apply regardless of whether an employee has previously been excluded or other precautions were taken in response to an employee’s close contact or membership in an exposed group.

10. In the case of multiple COVID-19 infections or outbreaks, employers will no longer be obligated to implement cleanable solid partitions (e.g., plexiglass barriers) around the workstations of an “exposed group.” Rather, under the third revised ETS, employers will need to evaluate whether physical distancing of a least six feet between persons is feasible, and if not, ensure as much distance as possible.

Cal/OSHA will likely update its website to provide the formal text of the third revised ETS and related FAQs when the third revised ETS becomes effective. You can access that website here: https://www.dir.ca.gov/dosh/coronavirus/ETS.html

We encourage you to reach out to a member of our Employment Law Group with any questions or concerns.