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On April 21, 2022, the California Occupational Safety and Health Standards Board approved the third readoption of the Emergency Temporary Standards (the Standard). The current Emergency Temporary Standards (ETS), which took effect January 14, 2022, is set to expire May 6, 2022. The newly approved Standard will likely take effect May 6 and will likely be in effect until the end of this calendar year. Although many features of the prior version remain intact, the Standard includes several notable changes that may require employers to update their policies and practices, including the written COVID-19 Prevention Program. We note a number of these differences below. As with prior versions, Cal/OSHA will likely update their Frequently Asked Questions to address the changes.

  1. Fully Vaccinated. The Standard deletes the definition of “fully vaccinated” and does not replace it with a new one. Thus, unlike the current ETS, the Standard now requires employers to make COVID-19 testing available to employees with COVID-19 symptoms regardless of vaccination status.
  2. Self-Administered and Self-Read COVID-19 Tests. Under the Standard, an employee may satisfy return-to-work criteria by taking a COVID-19 test that is both self-administered and self-read “only if” another mechanism for independent verification of the results is available such as a time stamped photograph of the results.
  3. Face Coverings. Importantly, the Standard removes the requirement that employers must provide face coverings to those who are not fully vaccinated and ensure face coverings are worn indoors or in vehicles. However, employers must provide face coverings and ensure they are worn when the California Department of Health (CDPH) requires. The Standard also removes from the definition of “face coverings” the requirement that light cannot pass through them when held up to a light source.
  1. Return-to-Work Criteria. The Standard sets forth revised return-to-work criteria. Under the Standard, regardless of vaccination status or previous infection, employees who do not develop COVID-19 symptoms or whose symptoms are resolving should not return to work until:
    • Five days have passed since COVID-19 symptom onset, or if there were no symptoms, the date of the first positive test;
    • 24 hours have passed since the last fever of 100.4 degrees or higher without using fever-reducing medication; and
    • A negative COVID-19 test collected on the fifth day or later is obtained (or if an employee cannot test or the employer does not require a test, 10 days have passed from the date of symptom onset, or if no symptoms develop, the date of the first positive COVID-19 test).
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On February 28, 2022, California Governor Gavin Newsom issued an Executive Order (EO) that suspended Section 3205(c)(6)(A) of the current Cal/OSHA ETS. As a result, employers will no longer have to provide face coverings to employees who are not fully vaccinated, and such employees will no longer have to wear a mask indoors or in…

The Los Angeles County Department of Public Health has issued a revised Health Order (“Order”) that makes important changes to Los Angeles County’s mask mandate, effective February 25, 2022. The major revisions are summarized below:

New Options Available to Establishments: Operators of “[a]ll indoor public settings, venues, gatherings, and public and private businesses” may choose to allow fully vaccinated persons ages 5 and older to choose to be exempt from the indoor masking requirement under one of the two options below:

    • Option 1: Allow both fully vaccinated customers/visitors and fully vaccinated onsite workers to unmask while indoors. 
      • Requirements: verify proof of full vaccination against COVID-19 or a recent negative COVID-19 test result prior to entry for all persons, age 5 and older.
        • Tests: must have been taken within 2 days if PCR test or 1 day if antigen test. Onsite workers not fully vaccinated may submit a negative COVID‑19 viral test prior to work onsite every 3 days in compliance with Cal-OSHA protocols.
        • Definition of Full Vaccination: The Order tracks the current CDC definition of “fully vaccinated,” meaning two weeks or more after a second dose in a two-dose series (e.g., Pfizer or Moderna) or two weeks after a single-dose vaccine (e.g., J&J).
      • Verification:
        • Tests: Operator must view (1) individual’s photo ID and (2) a printed document, email, or text message with results from a test provider or laboratory. (NOTE: at-home test results are only sufficient for employees, not the general public). See link for more details.
        • Vaccination: Operator must view (1) individual’s photo ID; and (2) vaccination card in print /electronic form or other evidence of vaccination.
      • NOTE: for any persons to be exempt from the indoor public setting masking requirement under this option, all persons who are not fully vaccinated or do not show proof of vaccination must (1) provide a negative COVID-19 viral test and (2) wear a well-fitting mask while indoors, except when actively eating or drinking.

Near the end of 2021, the Occupational Health and Safety Administration (OSHA) issued the Emergency Temporary Standard (the ETS), which required employers with 100 or more employees to put in place a mandatory vaccination policy or require weekly COVID-19 testing and mask wearing by unvaccinated or partially vaccinated employees. On November 5, 2021, the United States Court of Appeals for the Fifth Circuit stayed enforcement and application of the vaccine mandate; this stay was dissolved by the Sixth Circuit Court of Appeals on December 17, 2021. See the discussion of these rulings here and here. Thereafter, the United States Supreme Court agreed to review the issue.

As the COVID-19 landscape evolves and the Omicron variant pervades, state and local governments and health authorities have modified their recommendations, guidance, and regulations in an effort to manage the pandemic.

For example, on December 30, 2021, following the CDC’s December 27, 2021, changes to its quarantine and isolation recommendations, the California Department of Public…

The CDC recently updated its guidelines on, among other things, quarantine and isolation periods and recommendations regarding booster shots. Below is a high-level summary of some of these changes.

At the end of December 2021, the CDC updated its guidance regarding quarantine and isolation. A media statement from the CDC regarding its updates can be found here. Some of the biggest changes from the December recommendations involved the following:

  • Reducing isolation for those with COVID-19 to five days followed by five days of wearing a mask when around others.
  • Revising quarantine periods, including:
    • For unvaccinated individuals, individuals who completed the primary series of Pfizer or Moderna over five months ago and are not boosted, or individuals who completed J&J over two months ago and are not boosted, quarantine five days followed by “strict mask use” for five days.
    • If quarantine is “not feasible,” wear a “well-fitting mask at all times when around others for 10 days after exposure.”
    • Individuals who have received booster shots do not need to quarantine but should wear a mask for 10 days after exposure.

In an updated guidance released on December 27, 2021, the Centers for Disease Control and Prevention (CDC) reduced the recommended isolation and quarantine period for the general population. The term “isolation” refers to the recommended behavior after a confirmed COVID-19 infection, while “quarantine” is the term that applies to the period following a person’s exposure to the virus or close contact with someone who has COVID-19. According to CDC Director Dr. Rochelle Walensky, the Omicron variant is spreading quickly, and the “CDC’s updated recommendations for isolation and quarantine balance what we know about the spread of the virus and the protection provided by vaccination and booster doses.”

On December 17, 2021, the Sixth Circuit granted the Biden Administration’s motion to Dissolve the Stay of the OSHA Vaccine ETS, which was issued by the Fifth Circuit on November 5, 2021.  See link to full opinion. Judge Stranch (an Obama appointee) authored the opinion, which Judge Gibbons (a Bush appointee) joined. Judge Larsen…

On December 13, 2021, the California Department of Health (CPDH) reinstituted a statewide mask mandate. From December 15, 2021 through at least January 15, 2022, all individuals will be required to wear masks in indoor public settings. The mandate applies regardless of vaccination status.

The mandate exempts children under two, persons with medical conditions or…

On December 3, 2021, the U.S. Court of Appeals for the Sixth Circuit rejected, without analysis, the Biden administration’s request to expedite the briefing schedule on the issue of whether to dissolve an injunction from the U.S. Court of Appeals for the Fifth Circuit, which stayed enforcement of Occupational Safety and Health Administration’s vaccine Emergency…