The Impacts of Federal ETS on State ETS Mandates

On December 16, 2021 – one day before the Sixth Circuit lifted its stay of the federal OSHA ETS – Cal/OSHA announced it had readopted its previously issued Emergency Temporary Standards (ETS). Confusion ensued.

The newest version of the Cal/OSHA ETS goes into effect January 14, 2022.[i] This deadline is unimpacted by the ongoing litigation surrounding the federal OSHA ETS and its extended deadlines.

Federal ETS mandates are unenforceable by any state with a State Plan (i.e., any state, such as California, with their own OSHA approved occupational safety and health plan) until they have been formally adopted by the state. A process that cannot happen until the ongoing litigation involving the current federal ETS is concluded. This means Cal/OSHA will continue to enforce its own ETS standards until such time as federal ETS litigation concludes, and a Cal/OSHA board vote can be scheduled. It is unclear at this time when the Board will convene for a vote.

An overview of the Cal/OSHA ETS is provided below:

• Effective January 14, 2022, fully vaccinated employees or those who have recently recovered from COVID-19 after close contact, do not need to be excluded from the workplace. However, they must wear a mask and maintain social distancing while in the workplace for a period of 14 days.
• Employees exempted from wearing a face covering due to medical or disability-related conditions must maintain social distancing and be either fully vaccinated or tested weekly during paid time and at no cost to the employee.
• Employers must make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before a close contact incident occurred, even if they are asymptomatic.
• During outbreaks and major outbreaks, employers must make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available to asymptomatic fully vaccinated employees in the exposed group.
• Timeframes for employees returning to work after close contact are revised consistent with current California Department of Public Health guidelines:
  • Employees may return to work 10 days after the close contact if the employee wears a face covering and maintains 6 feet of separation from others for 14 days.
  • Employees may return to work 7 days after the close contact if the person tested negative for COVID-19 using a COVID-19 test with the specimen taken at least five days after the last known close contact; and the person wears a face covering and maintains six feet of distance from others while at the workplace for 14 days following the last date of close contact.

Additional clarification is provided regarding the following:

• The term “worksite” now clearly excludes the employee’s personal residence, locations where an employee works alone, and remote work locations chosen by the employee.
• The definitions for “COVID-19 test,” “Face coverings,” and “Fully vaccinated” have been revised to more consistently reflect federal OSHA definitions.

Additional key changes can be found in the December 17, 2021, edition of Spotlight.

Members with questions regarding compliance with federal or Cal/OSHA ETS should contact Western Growers.