Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On January 8, 2021, Cal/OSHA issued a much-awaited second set of FAQs to its COVID-19 Emergency Temporary Standards (ETS). The following are ten key takeaways:
- Scope: Employers that apply their Aerosol Transmissible Diseases (ATD) Program to their entire workforce need not comply with the ETS.
- Elimination of Penalties for Inspections through February 1, 2021: Cal/OSHA will issue citations, but not assess monetary penalties, for violations of the ETS during this period, so long as: (1) as the employer shows good-faith efforts of compliance; (2) the violation does not involve a violation of the Injury and Illness Prevention Program (IIPP), respiratory program or other applicable program in place before November 30, 2020; (3) the employer abates the violation; and (4) the citation does not involve an imminent hazard.
- Partitions: While they can reduce COVID-19 exposure, partitions do not prevent “close contact” exposures in the workplace.
- Ventilation: Employers in leased workspaces must show efforts made to require building operators to comply with the ETS’ ventilation requirements.
- Vaccinations: Vaccinations do not change an employer’s obligations under the ETS.
- COVID-19 Testing: Employers can refer employees to free testing sites as part of their testing obligations under the ETS.
- Cohorting Permitted: Employers can create cohorts of employees (in both space and time) to limit the number of individuals in an “exposed workplace,” provided there is sufficient ventilation and cleaning and disinfecting between shift changes.
- Counting of Outbreak Period: Employers should look to testing dates of the confirmed cases and look for any cases within the 14- or 30-day period.
- Exclusion Pay – Work-Relatedness: Exclusion pay is not required under the ETS if an employer can show the COVID-19 exposure was not work-related.
- Exclusion Pay – Duration: An employee unable or unavailable to return to work beyond the standard quarantine period of up to 14 days for each “single exposure or positive test” may be disqualified from receiving additional exclusion pay under the ETS.
While the updated FAQs address several important topics such as “exclusion pay,” testing requirements, outbreaks, and the “exposed workplace,” there are still many unanswered questions as employers seek to comply with the Division’s ETS. Employers should familiarize themselves with the guidance offered by the FAQs and seek the assistance of experienced counsel for any questions regarding compliance.