The Endemic-Era Workplace

Health and Safety Requirements Remain as COVID-19 Evolves 

By Jacob Herson
Managing Editor
Transit California

NOTE: Executive Order N-5-22 signed by Governor Newsom on February 28, 2022 following the publication of this article suspends Section 3205 (c)(6)(A) of the ETS. Section 3205 (c)(6)(A) required employers to provide face coverings to all employees who are not fully vaccinated and required employers to ensure the face coverings are worn when indoors or in vehicles.

When Governor Gavin Newsom unveiled the California SMARTER Plan: The Next Phase of California’s COVID-19 Response earlier this month, California became the first state in the nation to shift to an ‘endemic’ approach to COVID-19 policy and planning.  

“As we enter the next phase of the pandemic, the state is better equipped than ever to protect Californians from COVID-19 with smart strategies that save lives and advance our ongoing recovery,” said Governor Newsom. “Building on proven tools – rooted in science and data – that have been honed over the past two years, we’re keeping our guard up with a focus on continued readiness, awareness, and flexibility to adapt to the evolving pandemic.” 

Despite the state's shift to endemic planning and recently relaxed mask mandate, we are also seeing the State Legislature wade into workplace safety more than ever before with newly proposed legislation that would mandate that employers implement vaccination requirements on their employees and contractors (AB 1993, Wicks), and that would extend workers' compensation presumption for COVID-19 (AB 1751, Daly). While these bills face months of legislative hearings in Sacramento and will be subject to immense scrutiny from stakeholders and the public, there are workplace requirements that remain in place today that underscore that, for employers and employees, the pandemic has not subsided. The California Occupational Safety and Health Standards Board (Cal/OSHA) and its COVID-19 Prevention Emergency Temporary Standard (ETS) will continue to regulate workplace settings. Additionally, employers will continue to be required to provide COVID-19 supplemental paid sick leave to their employees. 

On December 20, 2021, Cal/OSHA readopted its ETS, with a series of substantive changes which went into effect on January 14, 2022. The readopted ETS employers are subject to will remain in effect until April 14 of this year. 

Among the big changes impacting public transit agencies are requirements around testing for both vaccinated and unvaccinated workers along with exclusionary periods for exposed employees. The California Transit Association’s Executive Director Michael Pimentel, who sits on the Cal/OSHA Advisory Committee, said, “Elevating workplace safety standards is paramount to mitigating the risk and spread of COVID-19 at work; however, the ETS continues to present acute challenges to the public transit industry and its ability to deliver services amid peaking operator shortages. Despite public transit’s critical role in providing frontline services, it is not currently extended the same return-to-work criteria as other frontline industries facing debilitating staffing shortages. There’s greater opportunity for balance when it comes to the requirements for transit agencies at the crux of keeping California moving forward in its recovery.” 

The full text of the readopted ETS is available here, and a summary of the key changes follows. 

• Key definitions in the ETS were revised. (Cal. Code Regs., tit. 8, § 3205(b)) 
  • The definition of "COVID-19 test" now includes all tests that have been cleared by the FDA to detect current infection with COVID-19 that are not self-administered and self- read (unless these actions are observed by the employer or an authorized telehealth proctor). 
  • The definition of "face covering" now means a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers (i.e., fabrics that do not let light pass through when held up to a light source) that completely covers the nose and mouth and is secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters are worn, they shall have two layers of fabric or be folded to make two layers. A face covering is a solid piece of material without slits, visible holes, or punctures, and must fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face. A face covering does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric. 
  • The definition of "fully vaccinated" now states that a person is fully vaccinated when the employer has documented: a person’s status two weeks after completing primary vaccination with a COVID-19 vaccine, if applicable, at least the minimum recommended interval between doses; and, a person’s status two weeks after receiving the second dose of any combination of two doses of a COVID-19 vaccine that is approved or authorized by the FDA, or listed as a two-dose series by the WHO. 
• Employers must make COVID-19 testing available at no to cost to all employees after close contact, regardless of vaccination status. Under the previous version of the ETS, fully vaccinated employees were exempt from this requirement. (Cal. Code Regs., tit. 8, § 3205(c)(3)(B)5.) 
• The period of time before an employee can return to work after a close contact has been revised. (Cal. Code Regs., tit. 8, § 3205(c)(10)(D).) However, CDPH has since reduced its recommended isolation and quarantine times, and these recommendations override the return to work criteria in the revised ETS under the Governor’s Executive Order N-84-20.  

The relevant exclusion periods are as follows: 

• If an employee tests positive for COVID-19, they must isolate away from the workplace for at least 5 days and may only return to work after day 5 if they do not have symptoms and if they test negative for COVID-19.  
  • If the employee does not test, for whatever reason, they must isolate for 10 days. 
  • Upon returning to work after a positive COVID-19 result, the employee must wear a face covering for a total of 10 days. 
• If an unvaccinated employee is exposed to someone with COVID-19, the unvaccinated employee must quarantine from the workplace for 5 days and is required to take a test on day 5. 
  • If the employee tests negative and does not have symptoms, they may return to work after day 5. 
  • If the employee does not take a test, for whatever reason, they can return to the workplace after 10 days of quarantine and must wear a face covering in the workplace for 10 days following the exposure. 
  • If the employee does develop symptoms, they may not return to work until they receive a negative test result.  
• If an employee is eligible for a COVID-19 booster but has not been boosted, and is exposed to someone with COVID-19, they do not need to quarantine as long as they do not have symptoms, but they must present a negative test within 3-5 days following the exposure. 
  • The employee must wear a face covering in the workplace for 10 days following the exposure and if they develop symptoms, they must quarantine until they receive a negative test result.  
• If an employee has received the booster or is fully vaccinated and not yet booster-eligible and they come in contact with a positive COVID-19 case, they do not need to quarantine if they are asymptomatic but they are required to test 5 days following the exposure. 
  • The employee must wear a face covering for 10 days in the workplace and if the employee does develop symptoms, they may not return to work until they receive a negative test result. 
• During an outbreak, employers must make COVID-19 testing available at no to cost to their employees, regardless of vaccination status, on a weekly basis. (Cal. Code Regs., tit. 8, § 3205.1(b)(1)) During a major outbreak, employers must make COVID-19 testing available at no to cost to their employees, regardless of vaccination status, twice a week, or more frequently if the local health department recommends it. (Cal. Code Regs., tit. 8, § 3205.2(b)). In housing provided by an employer, fully vaccinated employees are no longer exempt from testing, isolation and quarantine requirements. The employer must make COVID-19 testing available to all residents, regardless of vaccination status, if there are more than three COVID-19 cases in 14 days. (Cal. Code Regs., tit. 8, § 3205.3(g) & (h).) 
• In transportation provided by an employer, fully vaccinated employees are no longer exempt from face covering requirements. (Cal. Code Regs., tit. 8, § 3205.4(c)(2).) 

Beyond the ETS, the Legislature recently passed, and Governor Newsom signed into law SB 114 (Committee on Budget and Fiscal Review, Chapter 4, Statutes of 2021), requiring employers (including public agencies) with more than 25 employees to provide COVID-19 supplemental paid sick leave.The law, effective February 19 and retroactive to January 1, 2022, requires employers to provide up to 40 hours of COVID-19 supplemental paid sick leave to a covered employee, if the employee is unable to work or telework because the employee is:

1. Subject to quarantine or isolation related to COVID-19 as defined by the State Department of Public Health, Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace;
2. Advised by a health care provider to self-quarantine due to concerns related to COVID-19;
3. Attending an appointment for themselves or a family member to receive a COVID-19 vaccine or a vaccine booster;
4. Experiencing symptoms related to a COVID-19 vaccine or a vaccine booster that prevents the employee from being able to work;
5. Experiencing COVID-19 symptoms, and is seeking a medical diagnosis;
6. Caring for a family member who has symptoms from a COVID-19 vaccine or a vaccine booster; 
7. Caring for a family member who is subject to quarantine or isolation; or,
8. Caring for a child whose school or place of care is closed due to COVID-19. 

The law further requires employers to provide up to an additional 40 hours more of COVID-19 supplemental paid sick leave to a covered employee, if the employee, or a family member for whom the covered employee is providing care, tests positive for COVID-19. 

The supplemental paid sick leave will remain in effect through September 30, 2022.

The Department of Industrial Relations has released a Frequently Asked Questions to support employers in implementing the new requirements.