IMPORTANT COVID COMPLIANCE UPDATES
Cal/OSHA Updated ETS | Federal OSHA Vaccine Mandate | CA Mask Mandate
December 21, 2021 Below are three important updates related to COVID-19 compliance: 1) Cal/OSHA’s updated Emergency Temporary Standards, 2) Federal OSHA’s Vaccination Mandate and 3) CA’s updated mask mandate. Please review this information carefully. As always, we are here to assist you. Please visit United Contractors COVID Resource Page for important resources and information. Contact UCON at 928-855-7900 or by email for assistance.
CAL/OSHA ISSUES REVISED ETS ON COVID-19 PREVENTION
Background On December 17, the Cal/OSHA Standards Board voted to approve revisions to the COVID-19 Prevention Emergency Temporary Standards (ETS). There are significant changes that employers must observe in the areas of testing, social distancing rules, and face covering requirements for fully vaccinated employees in certain
circumstances. The revised ETS are effective on January 14, 2022, and will be in effect for 90 days. United Contractors opposed multiple provisions of the Second Readoption ETS which, effectively, eliminate distinctions between vaccinated and unvaccinated individuals in the regulation, as well as complicating return-to-work provisions. For now, employers must do their best to comply with these requirements: Key Revisions Revised Definitions – The following definitions have been revised:
a. “COVID-19” Test is now expanded beyond viral tests to include home tests, over-the-counter tests, and point-for-care tests. Employers should note that a test cannot be self-administered and self-read unless the employer or an authorized telehealth provider observes.
b. “Face coverings” was clarified to require fabrics that do not allow light to pass through when held up to a light source. Masks must fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. Face coverings with a clear plastic panel may be used to facilitate communication with people who are deaf or hard of hearing.
c. “Fully vaccinated” was expanded to include vaccines administered as part of a clinical trial. The revised ETS definition, at this time, does not include a booster shot.
d. “Worksite” was clarified to not include locations where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence, or an alternative work location chosen by the worker when working remotely. - Screening – Another change relates to screening employees for COVID-19 symptoms. As required by earlier versions of the ETS, employers must have a written COVID-19 Prevention Program. If the employer conducts screening indoors at the workplace, face coverings must now be worn by both screeners and employees regardless of
vaccination status.
- Post-Exposure Notification – The requirement to notify all employees of potential COVID-19 exposure remains in effect. The re-adoption clarifies that this notice must be provided to “all employees who were on the premises at the same worksite as the COVID-19 case during the high-risk exposure period.”
- Post-Exposure Testing – The revised ETS requires that post-exposure testing be made available to asymptomatic fully vaccinated employees, whereas previously testing was not required for this group of workers unless they exhibited symptoms.
- Exclusion of COVID-19 Cases and Close Contacts – A significant change is the exclusion of COVID-19 cases and close contacts.
* Asymptomatic fully vaccinated employees still do not need to be excluded following a close contact, but only if they wear a face covering and maintain six feet of distance from others for 14 days following the close contact.
* The same requirement – face covering and social distancing – applies for employees who are not excluded following a close contact because they have natural immunity.
* If an employee is excluded following a close contact because they are either fully vaccinated or have natural immunity, employers must provide the employee with information about any applicable precautions recommended by the California Department of Public Health for persons with close contact.
United Contractors has expressed concern that maintaining and enforcing social distancing and face coverings on an individual employee-by-employee basis is not practical. For now, employers must do their best to comply with this requirement.
- Return to Work Following Close Contacts – Under the re-adoption, employees who had close contact but never developed symptoms may return to work after 14 days unless one of the following applies:
* 10 days have passed since the close contact and the person wears a face covering and maintains six feet of distance from others for 14 days; OR
* 7 days have passed since the close contact, the person tests negative at least 5 days after the close contact, and the person wears a face covering and maintains six feet of distance from others for 14 days. This ability to return after 7 days with a negative test reflects recently updated CDPH guidance.
Multiple COVID-19 Infections and COVID-19 Outbreaks – As in previous ETS versions, an outbreak is defined as three or more employees with COVID-19 cases within the exposed group. Previously, employers did not have to make testing available to fully vaccinated employees if they did not exhibit symptoms. Now, if an employer faces multiple COVID-19 infections or a COVID-19 outbreak, the employer must make testing available to employees in the exposed group, even if
they are fully vaccinated and asymptomatic.
Employer-Provided Housing – If employers provide housing for their employees, they must:
* Use HEPA filtration units (if MERV 13 or higher filters are not used) to the extent possible.
* Test all residents of employer-provided housing in which there are three or more COVID-19 cases in 14 days.
* Quarantine even fully vaccinated asymptomatic residents following a close contact.
- Employer-provided transportation – Employers who provide transportation must provide face coverings to all employees, even those who are fully vaccinated.
- Effective date of Re-Adopted/Revised ETS and possible continuation
The revised ETS will become effective on 1/14/22 and remain in effect for 90 days. Due to a recently signed Executive Order by Governor Newsom, the Board may re-adopt the ETS for a third time, if needed.
WHAT SHOULD EMPLOYERS DO? Review the changes to the ETS carefully and ensure that employees are trained accordingly. Revise your written COVID-19 Prevention Program and other related documents. A template COVID IIPP is available on UCON’s Contractor COVID Resources page and will be updated before the new ETS goes into effect.
Cal/OSHA Resources Cal/OSHA is updating its resources to assist employers with understanding their obligations required by the revised ETS. Their COVID-19 webpage contains an updated fact sheet, which describes revisions to the ETS. When the revised
ETS become effective, Cal/OSHA will publish updated FAQs. Cal/OSHA’s model COVID-19 Prevention Program in English and Spanish is a helpful resource for employers to develop and maintain an effective written program. UCON Resources UCON has a COVID IIPP template and checklist available for all members. UCON will review and make any updated revisions before the new ETS go into effect. We will notify members. Additional resources can also be found on UCON’s
Contractor COVID Resources Page. Contact: United Contractors at 925-855-7900 or by email.
Federal Appeals Court Puts Fed OSHA’s
COVID Vaccination Mandates Back on Track
Background On December 17, the 6th Circuit U.S. Court of Appeals cleared the way for the Federal OSHA to enforce its new COVID-related emergency temporary standard (ETS). In a 2-1 decision, the court dissolved a short-term stay that had prevented the agency from enforcing the ETS, a mandate which required employers with 100 or more employees to require COVID vaccinations or weekly testing and masking for all personnel. Litigation against the ETS continues. Who the Federal ETS Applies to: Federal OSHA’s vaccine ETS will NOT immediately apply to all 100+ employee companies in California, unless such contractors are
working on (1) an exclusively federally funded project and/or (2) the federal agency overseeing the federal project applies that mandate. A mandatory vaccine ETS will only take effect statewide once Cal/OSHA adopts the current or an amended version of the Federal OSHA ETS. We are tracking this closely and will continue to update members about Cal/OSHA’s anticipated timeline.
Enforcement: Federal OSHA is now preparing to enforce the ETS, with the same deadlines for employer compliance. However, OSHA has noted that they will not issue citations for ETS noncompliance before January 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer is exercising “reasonable, good faith efforts.”
Next Legal Steps: OSHA’s enforcement of the ETS is subject to further court action. Emergency motions have been filed with the U.S. Supreme Court to block further implementation of the ETS. It is expected that the court will take at least two more weeks to rule after considering those arguments and the response from the federal government. What will be the Impact on CA? CalOSHA is most likely to wait and see how litigation at the federal level plays out. If the federal vaccination mandate is approved, all state programs, including Cal/OSHA , will have up to 30 days to adopt the ETS or explain how they're going to provide equivalent protection to affected worker populations. If California decides to adopt the federal ETS, it is likely that the Cal/OSHA Standards Board will convene
an emergency meeting to consider the matter. They could vote on a vaccine/test ETS, or they could "piggy back" the federal requirements onto the just re-adopted Cal/OSHA ETS. United Contractors will continue to update members as the mandate moves through the legal and regulatory processes.
California Issues New Statewide Mask Mandate
On December 13, California’s Department of Public Health (CDPH) issued a new mandate. Under the order, masks are required for all individuals in all indoor public settings, regardless of vaccination status from December 15, 2021, through January 15, 2022. CDPH has updated its guidance to clarify the application of the indoor mask mandate. Previously, the mandate by the CDPH
referenced “indoor public settings” without further definition. In the updated guidance, the CDPH clarifies that “the guidance applies to all workplaces, regardless of whether they serve the public, or are open to the public. Masks may be removed, “if the workplace consists of a single employee, or may be removed while an employee is alone in a closed office or room.” Cal/OSHA has also updated its FAQ for the COVID-19 Emergency Temporary Standard (ETS) to state that the ETS requires that employers “provide face coverings and ensure they are worn by employees when required by orders of the California Department of Public Health (CDPH). (8 CCR § 3205(c)(6)(B).) The December 13, 2021 CDPH guidance is such an order.”
Contact: UCON Member Services via email or phone 925-855-7900
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