By Jennifer Jacobus, PHRca, SDEA Director of HR Services
On April 21, California officials approved a third round of changes to the state’s COVID-19 Emergency Temporary Standard (ETS). The new rules will go into effect on May 6, although many aspects are already reflected in the recent guidance that has been incorporated into current rules. There are several significant changes outlined below (not inclusive):
More Testing of Symptomatic Employees
Under the current ETS, employers only need to make testing available to those employees with COVID-19 symptoms who are not fully vaccinated. The new language eliminates “fully vaccinated”, meaning you will have to offer testing to all employees with COVID-19 symptoms regardless of vaccination status.
Respirators Now Must Be Offered to All Workers
The current ETS requires employers to provide respirators for voluntary use to all unvaccinated employees upon request. The new language eliminates “unvaccinated employees”, meaning employers will be required to provide respirators, upon request to all employees, regardless of vaccination status.
Face Coverings No Longer Mandatory for Unvaccinated Workers
Governor Newsom issued an Executive Order striking the ETS language that required employers to provide and ensure face coverings were worn by unvaccinated employees. The new amended ETS language reflects these changes.
Employees need to be permitted to voluntarily wear faces masks if they choose to do so unless it creates a safety hazard.
Exclusion and Return-to-Work Criteria Streamlined – But Stay Tuned for More
The new language generally eliminates any specific language in the ETS regarding “close contacts” and instead requires employers to review current guidance and develop policies to prevent transmission by close contacts.
New Obligations if COVID-19 Outbreaks Occur
The new language includes the following changes:
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 practical, employers should require as much distance as possible between persons.
Testing Required After Major Outbreaks
Under the current ETS language, an employer must make COVID-19 testing available to all employees in the exposed group at least twice a week during a major outbreak. This language always caused confusion; while employers needed to make testing available, do they have to test? The new language clarifies that ” Employees in the exposed group shall now be tested or shall be excluded and follow the return-to-work requirements of the ETS.”
In addition to the above, some key definitions used throughout the ETS have been altered and this may require employers to change some of your practices. These include definitions of COVID-19 test, face coverings, full-vaccinated and returned case. Employers are encouraged to read the full article on amendments here: https://www.dir.ca.gov/title8/3205.html
Employers are still obligated to pay “exclusion pay” to employees who have been excluded from the workplace as a COVID-19 case or a close contact unless the employer can demonstrate that the close contact (we are assuming also COVID-19 case) is not work related. This is something that has flip-flopped many times.
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Additionally, Cal-OSHA’s ETS FAQs can be found here: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html