{"id":815,"date":"2021-01-14T11:50:00","date_gmt":"2021-01-14T16:50:00","guid":{"rendered":"http:\/\/caloshadefensereport.com\/?p=815"},"modified":"2026-03-15T16:51:51","modified_gmt":"2026-03-15T16:51:51","slug":"cal-osha-issues-a-second-batch-of-faqs-clarifying-its-new-covid-19-emergency-temporary-standard","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/calosha-defense-report\/cal-osha-issues-a-second-batch-of-faqs-clarifying-its-new-covid-19-emergency-temporary-standard\/","title":{"rendered":"Cal\/OSHA Issues a Second Batch of FAQs Clarifying Its New COVID-19 Emergency Temporary Standard"},"content":{"rendered":"

By Eric J. Conn<\/a>, Andrew J. Sommer<\/a>, and Beeta B. Lashkari<\/a><\/strong><\/em><\/p>\n

On November 30, 2020, Cal\/OSHA issued its COVID-19 Emergency Temporary Standard<\/a> and it became effective immediately — all provisions.\u00a0 Cal\/OSHA has signaled that there will be some early enforcement discretion, except for actions thought already to be required by the Injury Illness Prevention Plan regulation and other pre-existing regulations.\u00a0 But getting into compliance with this burdensome new rule should be a high priority.\"\"<\/a><\/p>\n

And how to get into compliance, or at least what Cal\/OSHA is expecting from California employers, has gotten a little clearer. As promised by Division Chief Doug Parker and Deputy Chief of Standards Eric Berg, we have a new set of Cal\/OSHA FAQs about the agency’s COVID-19 Emergency Temporary Standard<\/a>.<\/p>\n

The FAQs were announced by Cal\/OSHA in a communication confirming that the agency would continue to issue guidance as needed, and continue to implement the formal Advisory Committee Process through which improvements and fixes to the rule may be adopted.\u00a0 Here’s an excerpt from the communication:<\/p>\n

“There are now 69 FAQs with seven additional subheadings to help clarify and answer questions that we have received about the COVID-19 Prevention ETS …. We will continue to update the FAQs as needed in the future….”<\/em><\/p><\/blockquote>\n

And here is a link to full set of FAQs Cal\/OSHA has issued about the rule<\/a>.<\/p>\n

Based on our review, we think these FAQs provide some important clarifications about the ETS, and in some instances, essentially rewrite the regulatory language (mostly in helpful ways). \u00a0But it is also our view that the FAQs do not appear to be as flexible as the agency had signaled in some informal guidance (e.g., regarding how to determine the scope of an outbreak), and it does not address several important questions (e.g., what are employers options and obligations for employees who decline testing required by the rule).\u00a0 Here are some of the new FAQs that we thought were particularly noteworthy:<\/p>\n

Testing Related FAQs<\/u><\/strong>:<\/p>\n

Q:\u00a0What do employers do if employees refuse to take the tests<\/u> required by various provisions of the emergency regulations?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0 An employer that offers a test at no cost to the employee does not violate the regulation if an employee declines or refuses to take it. The employer is not required to obtain a signed declination from employees who refuse to take a COVID-19 test offered by the employer.<\/em><\/p>\n

Q:\u00a0Is there a difference between \u201coffer testing\u201d and \u201cprovide testing\u201d in the ETS?\"\"<\/a><\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0No. The meaning is the same for both terms.<\/em><\/p>\n

Q:\u00a0Does the employer have to provide testing to employees at their work location<\/u>?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0No. The employer may provide testing to employees at a testing site separate from their work location.<\/em><\/p>\n

Q:\u00a0Can employers send their employees to a free testing site for testing<\/u> (e.g., run by their county) and is this considered to be \u201cat no cost to employees?\u201d<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0Yes, as long as employees incur no cost for the testing. Ensuring that an employee does not incur costs would include paying employees\u2019 wages for their time to get tested, as well as travel time to and from the testing site. It would also include reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs).<\/em><\/p>\n

Q:\u00a0What does \u201cduring their working hours\u201d<\/u> or \u201cduring employees\u2019 working hours\u201d mean, in relation to providing COVID-19 testing?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0These terms, as used in the regulations, mean that the test must be provided during paid time. While the employee must be compensated for their time and travel expenses, the employer is not obligated to provide the test during the employee\u2019s normal working hours.<\/em><\/p>\n

Outbreak Related FAQs<\/u><\/strong>:<\/strong><\/p>\n

Q:\u00a0How does an employer determine what part of a workplace is an \u201cexposed workplace\u201d for purposes of determining if an outbreak has occurred and who must be tested?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0An \u201cexposed workplace\u201d is defined at section 3205(b)(7) and includes \u201cany work location, working area or common area used or accessed by a COVID-19 case during the \u2018high-risk period.\u2019\u201d For purposes of determining whether an outbreak has occurred, there must be three COVID-19 cases, all of whom worked in, used, or accessed the same \u201cwork location, working area or common area used or accessed\u201d in a 14-day period. If one of the three cases is in a different work location within an establishment, an outbreak has not occurred.
\nAreas a COVID-19 case passed through (i.e., travelled through en route to a work area and did not stop or stopped momentarily while wearing a face covering) are not considered in determining the area of an \u201cexposed workplace.\u201d For example, if all three COVID-19 cases have been in a common area, but one of the cases only passed through while wearing a face covering, an outbreak has not occurred for purposes of the ETS.<\/em><\/p>\n

Q:\u00a0Can an employer separate employees into cohorts to reduce the likelihood of COVID-19 cases occurring in the same work locations\/areas?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0Yes, that is an acceptable strategy to reduce risk and reduce testing obligations. The ETS requirements must still be implemented in the exposed workplace.<\/em><\/p>\n

Q:\u00a0For employers who have several non-overlapping work shifts at a facility, can each shift be considered as a separate \u201cexposed workplace\u201d, as defined by the ETS?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0If the facility is well ventilated and the cleaning and disinfection requirements of the ETS are met between or before shift changes, each shift may be considered as a separate \u201cexposed workplace.\u201d<\/em><\/p>\n

Q:\u00a0How can an employer measure the 14- or 30-day period in which to look for positive cases to determine if there has been an outbreak or major outbreak?<\/em><\/strong><\/p>\n

A:\u00a0<\/em><\/strong>The employer should look to the testing date of the cases. Any cases for which the tests occurred within a 14-day period would be reviewed to see if the other criteria for an outbreak have been met.<\/em><\/p>\n

Pay Continuation Related FAQs<\/u><\/strong>:<\/strong><\/p>\n

Q:\u00a0How long does an employee with COVID-19 exposure, or who tests positive for COVID-19 from the workplace, receive pay while excluded from the workplace?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0An employee would typically receive pay for the period the employee is quarantined, which could be up to 14 days (see above for potential impact of\u00a0<\/em>EO N-84-20<\/a><\/em>). If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation\u2019s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness. . The employee, however, may be eligible for temporary disability or other benefits.<\/em><\/p>\n

Q:\u00a0Must an employer exclude an employee who claims a COVID-19 workplace exposure?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0An employer should take any reports seriously and should investigate any evidence of an exposure. It is ultimately the employer\u2019s responsibility to determine if an exposure occurred.<\/em><\/p>\n

Q:\u00a0How are employers proving that a COVID-19 exposure is not work related and rebutting the presumption under SB 1159 related?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u202fSB 1159<\/a><\/em>\u00a0provides a rebuttable presumption for certain workers and workplaces that an employee\u2019s COVID-19-related illness is an occupational injury entitling the employee to workers\u2019 compensation benefits. Rebutting that presumption and proving that COVID-19 exposure is not work related to avoid the ETS\u2019 exclusion pay requirement involve an employer conducting comparable investigations and producing comparable evidence to show it is more likely than not that an employee\u2019s COVID-19 exposure did not occur in the workplace. \u202f<\/em><\/p>\n

Q:\u00a0Can an employee receive both temporary disability benefits under workers\u2019 compensation and receive their regular wages (or a portion of them) because they are excluded for work under section 3205(c)(10)(C)<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0No. Cal\/OSHA does not consider an employee receiving workers\u2019 compensation temporary disability benefits for wages lost during the period in which they are excluded from the workplace to be \u201cable and available to work\u201d within the meaning of section 3205(c)(10)(C). Therefore, an employee cannot receive both types of benefits.<\/em><\/p>\n

Return to Work Related FAQs<\/u><\/strong>:<\/strong><\/p>\n

Q:\u00a0What are the criteria for an employee exposed to a COVID-19 case in the workplace to return to work<\/u>?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0Applying Executive Order N-84-20 and\u00a0<\/em>current CDPH quarantine guidance<\/a><\/em>, while a 14-day quarantine is recommended, an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of last known exposure. Additionally, CDPH has provided guidance permitting health care, emergency response and social services workers to return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage.”<\/em><\/p>\n

Q:\u00a0What should an employer consider before seeking a waiver from Cal\/OSHA from the return-to-work requirements of section 3205(c)(11)?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0The ETS provides that employers can request a waiver of the requirement to quarantine\/isolate exposed or COVID-19 positive employees from the workplace if doing so would create an undue risk to public health and safety. Cal\/OSHA will not grant a waiver in violation of any order issued by a local or state health official pertaining to isolation or quarantine. An operation must provide goods or services, the interruption of which would cause an undue risk to a community\u2019s health and safety in order to qualify. This exception is narrower than the definition of \u201ccritical infrastructure,\u201d though such operations may qualify if there is an adverse impact on a community\u2019s health and safety. A facility must be facing a potential staffing shortage based on actual COVID-19 cases or exposures in order to qualify for a waiver. Requests should not be made in anticipation of a future outbreak.<\/em><\/p>\n

Other Notable FAQs<\/u><\/strong>:<\/strong><\/p>\n

Q:\u00a0How will Cal\/OSHA enforce<\/u> the ETS as employers implement the rule?\u00a0<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0All employers are expected to comply with all provisions of the ETS, and Cal\/OSHA will enforce the ETS, taking into consideration an employer\u2019s good faith efforts to comply. In addition to consideration of an employer\u2019s good faith effort to comply before issuing a citation, for the first\u00a0two months the rules are in effect (i.e., through\u00a0\u00a0February 1, 2021<\/u>), Cal\/OSHA will cite but not assess monetary penalties for violations of the ETS that would not have been considered a violation of the employer\u2019s Injury and Illness Prevention Program, respiratory protection program or other applicable Cal\/OSHA standard in place prior to November 30, 2020. This brief period of relief from monetary penalties will allow Cal\/OSHA and employers to focus on obtaining compliance, while ensuring workers still benefit from the protections in the ETS. This policy will not apply where an employer fails or refuses to abate a violation of the ETS Cal\/OSHA has identified, or in the case of imminent hazards.<\/em><\/p>\n

Q:\u00a0What is a \u201cfixed work location\u201d that would require solid partitions<\/u>?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0A \u201cfixed work location\u201d is a workstation where a worker is assigned to work with minimal movement from that location for extended periods of time. Examples include cashiers, greeters, receptionists, workers at desks or in cubicles, and food production line workers. It does not include construction or maintenance work.<\/em><\/p>\n

Q:\u00a0Once an employee is vaccinated<\/u>, must the ETS still be followed for vaccinated persons?<\/em><\/strong><\/p>\n

A:<\/em><\/strong>\u00a0For now, all prevention measures must continue to be implemented. The impact of vaccines will likely be addressed in a future revision to the ETS.\"\"<\/a><\/em><\/p>\n

For more details, plan to join Andrew Sommer<\/a>, Fred Walter<\/a>\u00a0and Megan Shaked<\/a> on Tuesday, January 26th at 12 PM PT \/ 3 PM ET for a complimentary webinar: Cal\/OSHA\u2019s COVID-19 Emergency Temporary Standard<\/a><\/strong>.\u00a0 This program will provide an overview of the regulation, existing and anticipated guidance provided by Cal\/OSHA about it, as well as enforcement efforts by Cal\/OSHA to date.\u00a0 We will also examine the interplay between the emergency temporary standard and other new, related California legislation, including AB 685 and SB 1159.\u00a0 The agenda includes:<\/p>\n