On May 20th, the Cal/OSHA Standards Board will consider changes to COVID-19 Emergency Temporary Standards (“ETS”).

The proposed changes would still require employers to have an established written COVID-19 Prevention Program (“CPP”) that covers everything from training and communication with employees to the investigation of COVID-19 cases in the workplace.

However, there are notable proposed changes in the requirements for the CPP, definitions, and COVID-19 case management procedures, which will have significant impacts on California employers.

Close Contact Instead of COVID-19 Exposure

This proposed change replaces the defined term “COVID-19 exposure” with the more commonly used term, “close contact.”  Although the definition remains the same (i.e., 6 feet, 15 minutes, 24 hour period), it now includes an exception for employees who wore a respirator under a Respiratory Protection Program, whenever they were within six feet of a COVID-19 case during the high-risk exposure period or period that someone could have been infectious.

Exposed Group Instead of Exposed Workplace

This proposed change eliminates some confusing defined terms like “exposed workplace” and adds a new term, “exposed group.” In shifting the language, the new definition would codify the guidance already contained in Cal/OSHA’s existing FAQs as to who and where would be included in or exempted from an “exposed group.” The exemptions include:

  • Areas in which a person momentarily passes through while everyone is wearing face coverings without congregating;
  • Distinct groups of employees, such as different work shifts that do not overlap; and,
  • If a COVID-19 positive person had visited a work location for less than 15 minutes and all persons wore face coverings, those individuals present would not be part of an exposed group.

In addition to aligning the definitions with Cal/OSHA’s guidance, the definitions also appear more consistent with current guidance from the Centers for Disease Control and Prevention (“CDC”) and the California Department of Public Health.

Notice Requirement

The proposed change still requires employers to notify employees of potential exposure or “close contact” within one business day. However, the notification obligation is now tied to when the employer knew or should have known of a COVID-19 case. The proposed changes to the notice requirement are significant in that the obligation can now be triggered if an employer should have known of a COVID-19 case, even if they actually did not. The proposed changes would also impose an obligation on employers to provide this notification in a written format. The written notice may be given by personal service, email, or text if it can reasonably be anticipated to be received by the employee within one business day and include information required by Labor Code section 6409.6. Cal/OSHA’s proposed changes are, as a result, shoring up the notice requirement to align with the written notification required by Assembly Bill 685.

Physical Distancing

If adopted, the revision states the physical distancing subsection would only apply before July 31, 2021. Moreover, the revision states the following employees would be exempt from the physical distancing requirements:

  • Employees wearing respirators under a Respiratory Protection Program
  • Subject to certain requirements, locations at which all employees are fully vaccinated, except for employees who require a reasonable accommodation or exception to vaccination

The proposed revisions also reduce the burden on employers with respect to 6 feet separation of employees by modifying the burden for employers to show that physical distancing cannot be achieved or sustained. Through the proposed changes employers would no longer have to demonstrate that six feet separation “is not possible” and have the less stringent requirement of showing that “six feet separation is not feasible.”

Face Coverings

To reflect recent changes from the California Department of Public Health guidance, the proposed changes add the following new exceptions to the face-covering requirement:

  • When all persons in a room are fully vaccinated and do not have COVID-19 symptoms;
  • Employees wearing respirators under a Respiratory Protection Program;
  • Employees who are fully vaccinated when they are outdoors so long as they are free of COVID-19 symptoms.

Exclusion from Worksite

The proposed revisions now match the recent update to the ETS FAQ, indicating that fully vaccinated employees that do not have COVID-19 symptoms do not have to be excluded from the workplace. Individuals who have been positive for COVID-19 and have recovered and return to work, also do not have to be excluded for 90 days after the initial onset of COVID-19 symptoms or for individuals who never developed symptoms, 90 days from the first positive test.

The proposed revisions further clarify that exclusion pay is not required where the employee received disability payments or was covered by workers’ compensation and received temporary disability. This change would also align the standard with Cal/OSHA’s current guidance.

If the revisions to the ETS are approved, it will ease employers’ burden as they reopen in some respects, but even if passed as revised, employers will need to continue to follow other state and local guidance regarding COVID-19 safety in the coming months. Employers should further be aware of the possibility of there being inconsistencies in Cal/OSHA’s ETS and guidance from the state and local health department, which could result in worker confusion or challenging workplace dynamics.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA ETS or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

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Photo of Sean Paisan Sean Paisan

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations…

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations, and fighting citations. Additionally, Sean also assists employers in data privacy and traditional employment matters, including litigation and counseling.

Sean’s first exposure to OSHA regulations occurred during his undergraduate studies while working for a construction company that helped build Disney’s California Adventure. After attending law school and working for the Los Angeles County District Attorney’s Office and the United States Attorney’s Office, Sean moved into private practice, where he focused on general liability matters, including serious injuries and fatalities. Through this experience, Sean became very knowledgeable on the myriad of Cal/OSHA regulations imposed on businesses, especially in the construction, manufacturing, and healthcare industries, and the consequences for violations of those regulations. From there, Sean became OSHA 30 certified and began assisting employers with all workplace safety matters, from compliance, to investigations and inspections, to the appeals of citations in California, Arizona, Washington, and Hawaii.

Throughout his career, Sean has been called upon to try cases that cannot be settled. He has handled trials in the United States District Court, California Superior Court, Cal/OSHA Appeals Board, Workers Compensation Appeals Board, and the US Department of Labor OALJ, as well as binding arbitrations. Sean has tried cases involving the following subjects: general employment, wrongful death, premises liability, unfair competition (B&P § 17200), false advertising (Lanham Act), misappropriation of trade secret, restrictive covenants, and whistleblower (AIR21).

In addition to his trial experience, he is routinely called on to assist his clients with workplace crises such as catastrophic injuries, fatalities, data breaches, and ransomware incidents. Drawing on his years of in both civil and criminal law, Sean’s unique background allows him to anticipate and proactively manage issues, rather than simply reacting to requests and inquiries by investigating agencies such as law enforcement, OSHA, Cal/OSHA, California Bureau of Investigations (BOI), Federal Aviation Administration (FAA), National Transportation Safety Board (NTSB), as well as opposing counsel in litigation matters.

In addition to his litigation experience, Sean has earned the CIPP/US credential through the International Association of Privacy Professionals (IAPP). He helps organizations manage rapidly evolving privacy threats and mitigate the potential loss and misuse of information assets. He has an in-depth understanding of how privacy laws can impact business operations. These laws include the Health Insurance Portability and Accountability Act (HIPAA), Federal Trade Commission Act (FTC Act), Health Information Technology for Economic and Clinical Health Act (HITECH), Genetic Information Nondiscrimination Act (GINA), Fair Credit Reporting Act (FCRA), Gramm-Leach-Bliley Act (GLBA), Fair and Accurate Credit Transaction Act (FACTA), Dodd-Frank Wall Street Reform and Consumer Protection Act, California Financial Information Privacy Act, Family Educational Rights and Privacy Act (FERPA), Telemarketing Sales Rule, Telephone Consumer Protection Act (TCPA), Junk Fax Prevention Act, Controlling Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), Cable Communications Policy Act, Video Privacy Protection Act, Children’s Online Privacy Protection Act (COPPA), California Online Privacy Protection Act (CalOPPA), California Consumer Privacy Act (CCPA), and California Privacy Rights Act (CPRA). With respect to laws affecting the ability of the government to obtain information, Sean can assist employers in understanding their obligations under the Federal Wiretap Act, Electronic Communications Privacy Act (ECPA), Communications Assistance for Law Enforcement Act (CALEA), Right to Financial Privacy Act, Privacy Protection Act, Foreign Intelligence Surveillance Act (FISA), and USA PATRIOT Act.

Before becoming an attorney, Sean earned his bachelor’s degree in accounting from the University of Southern California, where he also played varsity ice hockey in the ACHA. When not practicing law, Sean enjoys spending time with his wife and three young children, playing adult league ice hockey, mountain biking, and motorsports.