What Employers Need to Know About the New COVID Standards

Posted by: kevensteinberg
Category: Covid-19, Employment Law

On May 6, 2022 the Occupational Safety and Health Standards Board, which is part of the California Division of Occupational Safety and Health approved the readoption of the COVID-19 Emergency Temporary Standards (“ETS.”).

Employers should update their COVID-19 protocols to be in compliance with these new standards.

Who Must Be Tested?

Employers will now be obligated to offer COVID-19 testing to all employees exhibiting symptoms of COVID-19, with the exception of returned cases.

This change broadens who must be offered testing in the workplace.  Previously, only employees who were not fully (at least both doses and not necessarily boosters) vaccinated had to be offered testing when they exhibited symptoms. Testing must still be offered to employees after a close contact or consistent with the return-to-work protocols.

New Definition of “Infectious Period”

The infectious period is two days before the onset of symptoms until 10 days after symptoms began, 24 hours have passed since no fever without fever reducing medication and symptoms are resolving.

If the employee is without symptoms, the infectious period is two days before the positive test until 10 days after. 

Vaccination Status

The definition of fully vaccinated has been removed from the ETS.  But knowing your employees’ vaccination status is essential to making a return-to-work determination.  It is therefore suggested that an employer keep and maintain up to date records of employees’ vaccination status and maintain them as a requirement in your COVID-19 prevention plan.

Return-to-Work

Employers are now required to review the California Department of Public Health [insert link – https://www.cdph.ca.gov/] guidelines regarding quarantine, measures to reduce transmission and to develop policies to prevent COVID-19 transmission.

Employees who have tested positive or have been exposed to COVID-19 case cannot return to work until the requirements of the ETS are met.

The new ETS also sets forth updated return-to-work requirements which apply regardless of the employee’s vaccination or previous infection status.

Requirements

If the employee does not develop symptoms or symptoms are resolving, they cannot return until:

– At least five days have passed since the date symptoms began or from the date of the first positive test;

–  At least 24 hours have passed since a having a fever of 100.4 or higher without the use of fever-reducing medication; and

–  A negative test collected on the fifth day or later comes back negative. if a test is not obtained or comes back positive the employee cannot return until 10 days have passed.

If the employee’s symptoms are not resolving, they cannot return until:

–  At least 24 hours have passed since a having a fever of 100.4 F or higher without the use of fever-reducing medication; and

–  Symptoms are resolving, or 10 days have passed from when the symptoms began.

–  Upon return, employees must also wear a face-covering in the workplace until 10 days have passed since symptom onset or if they did

not have symptoms, until 10 days have passed since the date of their first positive test.  These requirements apply even if an employee was excluded due to a close contact under the guidelines and later test positive.

Monitored Testing

Testing no longer needs to be monitored by the employer. Employers may simply require that employees submit proof of the test with the date and time.

Addition of “Returned Case” Definition

The term “returned case” has been added to the definitions section. A “returned case” is an employee who returned to work after testing positive and did not develop symptoms after returning. This person is considered a “returned case” for 90 days after developing initial symptoms, or if they never had symptoms, then 90 days after their positive test.  Returned cases do not need to be provided with a test after a close contact. 

Employers should look to update their testing requirements as these employees represent one of the few exceptions to this testing requirement.

Workplace Sanitation Obligations

Infected and contaminated surfaces and objects have been removed from the definition of a COVID-19 hazard. Additionally, the new ETS removes all cleaning and disinfection requirements.

Test Kits and N95 Masks

Employers should stock up on test kits or work with a reliable testing provider to ensure they will be able to keep offering testing as required.

All employees may now request, and the employer must provide, an N95 mask regardless of vaccination status.  Previously, only unvaccinated employees had this option. 

Translucent Face Coverings

There is no longer a requirement that face coverings prevent light to pass through.  

Partitions During Outbreaks

There is no longer the requirement for the use of solid partitions with disinfecting qualities whenever social distancing cannot be maintained.

Recommendations

Despite what now may appear to be more “relaxed” standards employers must remain vigilant in not only protecting their businesses, but also their employees, customers and clients.  Employers most certainly should  most certainly update their COVID-19 protocols as noted here and in compliance with all other mandates and recommendations.

Employers should also educate and train their employees on these standards and revise their safety and prevention plans as well as stay up to date on current regulations.

Steinberg Law provides valuable insight, expertise and knowledge to employers and business owners across a wide spectrum of areas and is frequently requested and tasked with protecting and defending a wide spectrum of employers and businesses.

Author: kevensteinberg