Since the drama in passing the amended COVID-19 Emergency Temporary Standards (ETS) in June, the Cal/OSHA Board has been relatively quiet, though discussing a more permanent COVID-19 Standard. In the meantime, federal OSHA took the spotlight with President Biden’s COVID-19 Action Plan.

Currently, the Cal/OSHA ETS is set to expire on January 14, 2022. But unlike the main character in Disney’s Frozen, it appears Cal/OSHA does not intend to let it go. Recently Cal/OSHA released a proposed second re-adoption of the ETS.

Under the proposal, much of the ETS would remain the same as the Standards passed in June. Here is a summary of the key updates proposed:

Exclusion from Worksite

Consistent with the current ETS, employers must still exclude employees who are positive for COVID-19 until return-to-work requirements are met. Employers also must exclude employees who have had close contact with a positive individual unless the employee is fully vaccinated and asymptomatic.

Currently, employees who have a close contact but are fully vaccinated and remain asymptomatic don’t need to be excluded from the workplace. Under the proposed amendments, these employees must now wear a face-covering in the workplace for 14 days, maintain social distance for 14 days, and get a COVID-19 test three to five days after the close contact in order to take advantage of the exception.

Return-to-Work Criteria

Under the proposed revisions, persons who had close contact, but never developed COVID-19 symptoms may return to work (1) 14 days after the last known contact, (2) 10 days after the last known contact if they wear a face covering and socially distance for 14 days after the close contact, or (3) 7 days after the last known close contact if the person tests negative for COVID-19 using a polymerase chain reaction (PCR) test with the specimen taken 5 days or later after the close contact and if the individual wears a face covering and socially distances from others for 14 days after the close contact.

Persons who had close contact and developed COVID-19 symptoms can only return to work when (1) at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without using a fever-reducing medication, (2) COVID-19 symptoms have improved, and (3) at least 10 days have passed since the COVID-19 symptoms first appeared.

The proposed revisions would also remove the return-to-work exemptions for essential critical infrastructure during staffing shortages.

Outbreaks and Testing

Employers, under the proposed revisions, would need to test even vaccinated, asymptomatic employees in an outbreak setting. An outbreak under the ETS is defined as three or more employees testing positive for COVID-19 within an exposed group during a 14-day period.

Moreover, employers will be required to provide testing for all close contacts, including vaccinated employees.

Face Coverings

Though state and local guidance regarding face coverings has fluctuated since June 2021, the ETS guidance will remain mostly the same.

However, both vaccinated and unvaccinated employees must wear face-covering during screening.

The Standards Board has indicated that the face coverings requirements in the ETS are intended to be the minimum requirement, while state and local public health departments may make more stringent mandates.

If approved, the revisions to the ETS would go into effect on January 14, 2022, and remain in effect until April 14, 2022.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards 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.