BY BARRY COHN
While it may feel that the pandemic is in the rearview mirror, Cal/OSHA has passed Act 3 of the Emergency Temporary Standards (ETS) which took effect on May 6 and will remain in place until the end of 2022. Clients have been calling and asking, “What do we do now? Do we need another COVID-19 Prevention Plan (CPP)? Can you help us make sure we are in compliance?”
As a health insurance agent or broker, you can help your clients with COVID-19 compliance including the requirement for all employers, no matter how many employees they have, to have a written CPP in place. If they do not follow the ETS rules or have a CPP, all it takes is one employee and one attorney to spell disaster for your client.
Here is a summary of the new ETS regulations and should provide you with ammunition to check in with your clients and provide much needed guidance and value.
What has NOT changed: Exclusion Pay
Employers had hoped that an end to the obligation to provide exclusion pay for employees that have been excluded as COVID-19 cases or close contacts — especially since California has brought back COVID-19 Supplemental Paid Sick Leave. However, the third adoption retains the same exclusion pay requirement — meaning you will continue to have to pay employees that have been excluded from work unless an exception applies.
New key definitional changes that will lead to changed employer practices:
- COVID-19 Test – The definition of “COVID-19 test” has been amended to provide that a test may be both
self-administered and self-read only if another means of independent verification of the results can be provided (such as a time-stamped photograph of the results).
- Face Coverings – The definition of “face coverings” has been amended to delete the requirement that light does not pass through the mask when it is held up to a light source. This is an improvement since some N95 masks could not meet this requirement.
- Fully Vaccinated – The definition of “fully vaccinated” has been deleted. This is largely in response to the fact that the face covering provisions of the ETS no longer make a distinction between fully vaccinated employees and unvaccinated employees.
- defined term of “returned case” to largely describe employees who previously had COVID-19 and now have natural immunity. “Returned case” is defined to mean an employee who previously had COVID-19 who 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 symptoms or the first positive test (if no symptoms developed).
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 this limitation, meaning you will have to offer testing to all employees with COVID-19 symptoms regardless of vaccination status. This could significantly increase testing costs, so employers should have a plan in place to comply with this testing obligation.
Respirators must now 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 the linkage to unvaccinated employees. Therefore, you will be required to provide respirators upon request to all employees, regardless of vaccination status.
Face coverings no longer mandatory for unvaccinated workers
The new language conforms the ETS to recent developments regarding face coverings. The California Dept. of Public Health (CDPH) changed its face covering guidance to no longer require masks indoors regardless of vaccination status for most employers.
Face coverings are mandatory in the ETS when CDPH requires their use, which currently includes the following indoor settings, regardless of vaccination status: healthcare settings and long-term care settings and adult and senior care facilities
Keep in mind that other face covering provisions of the ETS remain in effect. This includes language that allows employees to voluntarily wear face coverings unless it would create a safety hazard.
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.
Cleaning and disinfection rules eliminated
The current ETS requires employers to implement specified cleaning and disinfection procedures, including regularly cleaning frequently touched surfaces and objects. The new language eliminates these requirements in their entirety.
Exclusion and return-to-work criteria streamlined.
The new language generally eliminates any specific language in the ETS regarding “close contacts.” Instead it merely cross-references CDPH guidance, simply requiring employers to review current guidance and develop policies to prevent transmission by close contacts.
However, more changes could be afoot in the near future. On April 6, CDPH released revised Isolation/Quarantine guidance (https://bit.ly/3NLMuw4) that states that all individuals who are asymptomatic close contacts do not need to quarantine as long as they test within three to five days after their last exposure. For now, check local public health orders, as several counties have indicated that they will not be following the new CDPH guidance and instead continue to insist that unvaccinated individuals quarantine for five days after a close contact, consistent with CDC guidance.
With respect to COVID-19 cases, the new changes delete the current language in the ETS and instead provide the following, which conform to current CDPH guidance:
COVID-19 cases, regardless of 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 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 person with 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.
New obligations if COVID-19 outbreaks occur
The new changes to the ETS section on multiple COVID-19 infections and outbreaks generally make conforming changes to reflect the amendments to the ETS described above.
However, the new language also makes the following changes:
During an outbreak, employees who had close contacts should have a negative COVID-19 test result 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).
Testing required after major outbreaks
The changes to the ETS “major outbreak” requirement generally conform to the changes noted above. There is
also one notable change, however. 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 a bit of confusion. While employers needed to make testing available, do they have to test? The new language clarifies that employers are required to do so in such situations. Employees in the exposed group shall now be tested or shall be excluded and follow the return-to-work requirements of the ETS.
Testing after exposure slightly changed
Under the current ETS, an employer is generally required to make testing available to all employees who had a close contact to a COVID-19 case in the workplace with an exception for employees that previously had COVID-19 within the last 90 days. The new language simply replaces this exception language with the new term “returned cases” described above.
Keep in mind that, other than the changes discussed above, the rest of the ETS will remain in effect as well. This includes notification requirements following a COVID-19 case in the workplace and the obligation to maintain a
Written COVID-19 Prevention Program.
Sitting down with your clients and sharing this important information can only solidify your relationship as a trusted advisor.
BARRY COHN CEO and Chief HR Guy at JorgensenHR (JHR) was listed as one of The Valley 200, Most Influential Leaders in the San Fernando Valley area for 2021 and 2022. Cohn also leads the LA & Ventura County Employee Benefits practice for Really Great Employee Benefits (RGEB), a division of Heffernan Insurance Brokers.
He is very active in his community, both professionally and personally.