California’s Division of Occupational Safety and Health (Cal/OSHA or “the Division”) Standards Board met on April 21, 2022, and formally approved the third readoption of its COVID-19 Emergency Temporary Standard (“3^rd Revised ETS”), by a 6-1 vote.  There were no substantive changes from the earlier draft text.  Under Governor Newsom’s previous executive order that paved the way this readoption, the 3^rd Revised ETS will become effective when the Office of Administrative Law completes its review and files it with the secretary of state, which is anticipated to occur before the end of the first week of May 2022, and will remain in effect through December 31, 2022.

During the meeting, the Division clarified a couple points of significant interest.  First, the Division stated that new FAQs explaining how the California Department of Public Health (CDPH)’s Isolation and Quarantine Guidance updated on April 6, 2022 applies under the current and new ETS are essentially complete and will be forthcoming.  Second, the Division stated that CDPH guidance will not govern the operative definition of a “close contact,” which the new ETS continues to define as being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period that overlaps with the infectious period of the COVID-19 case.  The CDPH’s guidance contains a much broader definition of a close contact that discards the “within six feet” delimitation and includes all persons in the same indoor airspace as a positive case. The Division clarified that only a CDPH regulation or order would supersede the ETS definition of close contact, but not mere guidance on the issue.

The meeting also included significant discussion and debate regarding what a permanent standard to replace the ETS after December 31, 2022 would entail, such as a permanent infectious disease standard, expansion of the aerosol transmissible disease standard and/or amendment of the Injury and Illness Prevention Program (IIPP) standard. The Board voted unanimously on April 21, 2022 to deny the Western Steel Council’s petition to eliminate the entire CA ETS and amend the IIPP standard to incorporate as workplace requirements under Cal/OSHA’s purview current guidance from the CDPH, as we discussed here.

Executive Officer Christina Shupe emphasized near the conclusion of the meeting that the degree of public participation that has been facilitated by the ability to attend Cal/OSHA meetings remotely during the past two years is unprecedented, but that unless a solution is identified for continued financing, it is unclear whether Cal/OSHA will be able to continue remote access to its proceedings beyond June 2022.

Littler will continue to monitor this active area.  Employers should consult with their employment counsel regarding ongoing developments and how they may affect any possible changes to their own workplace safety plans.