This Thursday, Cal/OSHA will vote on the second readoption of the COVID-19 Workplace Emergency Temporary Standard (the “COVID-19 ETS”) which will govern COVID-19 safety protocols in virtually all of California’s workplaces. As part of its second (and final) readoption, Cal/OSHA will be making some changes to flashpoint issues – including testing, physical distancing, vaccination and exclusion of employees after exposure – so California employers should read the new text (available here, “Readoption Text”) and begin planning for compliance in January of 2022.
Increased Testing and Exclusion for Vaccinated Workers in 2022
Chief among concerns with the Readoption Text are new exclusion and social distancing requirements that will increase workplace disruptions among vaccinated employees. Under the present COVID-19 ETS, a vaccinated employee who has a close contact at work does not need to be excluded or tested unless they show symptoms after their exposure. However, under the Readoption Text, a vaccinated employee who has a close contact and shows no symptoms would still need to be tested and either: (a) excluded from the workplace for 14 days despite a negative test, or (b) return to the workplace but would need to maintain 6 ft. social distancing and masking for 14 days. This change is likely to have two clear consequences for California’s public and private sector employers: increased testing costs and increased workplace disruption.
Regarding testing – as noted by Reuters here, increasing demand for COVID-19 tests (including President Biden’s contractor and workplace vaccine mandates) is driving up the price of testing. This shortage is particularly being felt for so-called “rapid tests”, which are ideal for employers (and individuals) trying to quickly screen themselves for personal, work, or travel needs. The Readoption Text will only add to this shortage by forcing California employers to provide testing for California’s vaccinated population – and at considerable cost. Rapid tests can cost $100-$200 per test. Moreover, the Readoption Text specifically prohibits the use of at-home, self-conducted tests after exposure, so those new testing options will not alleviate this new cost.
Regarding workplace disruption – the options to return to work with social distancing for a 14-day period is simply not practical for many workers and workplaces. Logistically, many jobs cannot be performed in a socially distant setting. For example: hairdressing, restaurant work, as well as many film/tv shoots simply require that the employee be within six feet of others at various points to do their job. Similarly, in many manufacturing and light industrial settings, the locations of factory equipment cannot be shifted – and particularly not for a short two-week window – making the option of “returning with social distancing” not actually viable for many employers.
In other words – Cal/OSHA appears to be trying so hard to address breakthrough cases that they will now be forcing exclusion of vaccinated employees who have tested negative after exposure. This will certainly increase disruption in California’s workplaces and exacerbate the effect of the present labor shortage, particularly for small employers who cannot find new workers to fill these 14-day exclusion periods.
Also notably, the Readoption Text removes the special return-to-work timeline for nurses and other healthcare professionals operating in a staffing shortage – which presently allows them to return after 5 days subject to certain limitations – meaning that hospitals are likely to see additional staffing issues under the Readoption Text.
Though caution is always wise – particularly with scientific uncertainty about the new omicron virus – these changes miss the bigger picture of California’s success. California has led the way on vaccination distribution and decreasing transmission, despite the obvious difficulties that its geographic size and huge population pose. But under the Readoption Text, California employers who pushed hard to vaccinate their workplaces are going to lose some of the value of vaccination by returning to increased exclusion.
If adopted at the December 16th meeting, these changes will be in effect from mid-January to April of 2022. Looking down the road, the Cal/OSHA Standards Board has released their working draft of a “permanent” standard to be considered in March, which is available here (and includes a 2-year sunset clause). If passed, that permanent regulation would go into effect in April of 2022. However, before relying on the draft permanent standard, employers should be aware that some changes are likely to be made before it is brought before the Board.
What else is coming in 2022?
Large employers, or those with federal contracts, will have to wait a bit longer for certainty on President Biden’s contractor mandate and Fed/OSHA vaccine regulation, as both are under legal challenge and enforcement is on hold. The Sixth Circuit has yet to rule on the OSHA vaccine mandate – but may make a partial ruling on the injunction later this month. However, even after that ruling, the final fate of the mandate will not be resolved, as an appeal to the Supreme Court seems inevitable in early 2022. For the contractor mandate, employers are in a similar holding pattern. On December 7th, a U.S. District Court for the Southern District of Georgia issued a preliminary injunction halting enforcement of the federal contractor mandate nationwide. Almost inevitably we will see the same appeals process work its way upward here, though it is harder to predict the timeline.
In other words – California employers should keep one eye on Cal/OSHA for workplace regulation changes, and one eye on the federal courts for action on the vaccine mandates. If they have any eyes left over, employers should also watch local public health departments for potential added requirements as we learn more about the omicron variant and the need for booster shots.
Despite all that weighty news – and since this will be my last blog of the year – let me end by wishing all of you Happy Holidays. I hope you see your families (safely), exchange wonderful gifts, and get your booster shots!