Read Our COVID-19 Resources and Information

Supreme Court Ruling Does Not Exempt California Employers from California’s Emergency Temporary Standards

Employers everywhere relaxed on January 13, 2022 when the U.S. Supreme Court voted 6-3 that the Occupational Safety and Health Administration's Emergency Temporary Standard could not be enforced. The Court found among other things that although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, in grocery stores and everywhere else that people gather. COVID-19 is no different from similar other risks such as crime, air pollution, or any number of other communicable diseases. OSHA’s attempt to regulate a health protocol of vaccination oversteps its regulatory authority. Following this ruling, Federal guidelines now state employers with 100+ employees are not required to enforce mandatory vaccinations or weekly testing for COVID-19.

U.S. Supreme Court Decision Will Not Stay Cal/OSHA's ETS

The U.S. Supreme Court’s stay on the federal OSHA ETS does not affect mandates on the state or local level for employers. California Employers are still required to follow California’s Emergency Temporary Standards, updated and effective January 14, 2022.

No Vaccine Mandate in the Revised Cal/OSHA’s ETS

The readopted ETS did not add a vaccine mandate. However, it has several significant revisions that increase obligations and burdens for California employers.

Cal/OSHA has confirmed that timeframes for exposed or sick employees to quarantine or isolate are governed by guidance from the California Department of Public Health (CDPH), even where those recommendations are different from what is explicitly written in the Cal/OSHA regulations. And the CDPH has, in fact, issued new recommendations, which permit reduced isolation and quarantine periods in the revised Cal/OSHA ETS when it becomes effective.

Effective Period

The revised Cal/OSHA ETS goes into effect on January 14, 2022, and will expire on April 14, 2022. However, it is likely that Cal/OSHA will rely on Governor Newsom’s executive order permitting the ETS to be extended through the end of 2022 to extend the time, so it is important that employers check back frequently.

What Are Key Take Aways in the Revised Cal/OSHA ETS?

This list merely summarizes some of the more common and universal changes. As has been the course for the past two years, the rules will be clarified day by day in the FAQ section of the state’s website. Therefore, it will be important for employers to check each time they have a situation to ensure current compliance.


1. The Distinction Between Fully Vaccinated and Unvaccinated Employees Is Eliminated for Certain Requirements

  • COVID-19 Testing for Close Contacts: Employers will need to provide COVID-19 tests at no cost to all employees regardless of their vaccination status if they are identified as a close contact with a COVID-19 positive case in the workplace.
  • Outbreak Testing for an "Exposed Group" of Employees: Employers must offer COVID-19 testing to all employees, including fully vaccinated employees, who are part of an "exposed group" (as defined by the Cal/OSHA ETS) during a COVID-19 outbreak.
  • Employer-Provided Information Regarding COVID-19-Related Benefits: Employers need to provide all employees identified as a "close contact" (as defined by the Cal/OSHA ETS) in the workplace with information about COVID-19-related benefits to which the employee may be entitled, including Cal/OSHA's controversial exclusionary pay benefits.
  • Face Coverings: All employees will need to wear a face covering during all health screenings conducted indoors.

2. Revised Definitions

  • Face Coverings: Cloth face coverings must now pass a "light test"—meaning a cloth face covering meets the Cal/OSHA ETS's definition only if light does not pass through when the covering is held up to a light. This test creates a risk for employers as cloth face coverings worn by employees throughout the course of the pandemic might not pass this test.
  • COVID-19 Testing: Self-administered and self-read tests are permitted but only if the employer or an authorized telehealth proctor observes the test. An employee who administers and reads a take-home test on his or her own will not have taken a valid test for purposes of complying with the revised Cal/OSHA ETS.
  • Fully Vaccinated: Employees can now combine different COVID-19 vaccines to become fully vaccinated, such as receiving one dose each of the Pfizer-BioNTech and the Moderna vaccines. When employees combine different doses, the second dose needs to be received no earlier than 17 days after the first dose. Additionally, the revised Cal/OSHA ETS now permits trial vaccines, subject to certain additional requirements, such as the recipient must have received the active vaccine candidate and not the placebo.

3. Notification of Employees and Third Parties of Positive COVID-19 Cases in the Worksite

Worksites now specifically exclude locations where an employee worked by themselves and was not exposed to others, an employee's home, and any location chosen by an employee who is working remotely.

4. Cal/OSHA Will Follow CDPH’s Exclusion Recommendations If There is A Conflict with the Revised Cal/OSHA ETS

The isolation and quarantine periods (also called "exclusion periods") in the Cal/OSHA ETS have been replaced by the CDPH's updated recommendations.

On January 6, 2022, Cal/OSHA updated its Frequently Asked Questions, indicating the CDPH's recommended exclusion periods replace those written in the second readopted ETS.

  • Isolation v. Quarantine: For purposes of the Cal/OSHA ETS and CDPH guidance, isolation refers to periods of restricted in-person contact for COVID-19 cases. Quarantine refers to periods of restricted in-person contact for those who have close contact with a COVID-19 case but are not a COVID-19 case themselves.
  • Isolation Periods for Positive COVID-19 Cases: Based upon the CDPH's recommendations, there are two isolation periods for California employees testing positive for COVID-19. The isolation requirements apply regardless of employee vaccination status, history of prior infection, or existence of symptoms. Both isolation periods also prohibit any employee from returning to the workplace if they have a fever. Employees are also required to wear face coverings for 10 days following their first positive test.
    • Five-Day Isolation: An employee can return to the workplace after at least five days if:
      • The employee is no longer symptomatic or their symptoms are resolving; and
      • The employee tests negative using a specimen collected on day five or later.
    • Ten-Day Isolation: An employee can return to the workplace after at least 10 days if:
      • The employee's symptoms are resolving; or
      • Ten days have passed since the employee's first positive test.
  • Quarantine Periods for Close Contacts: The CDPH's recommendations (and thus Cal/OSHA's requirements) regarding quarantine periods include a previously unseen nuance: distinctions between "fully vaccinated" individuals based upon whether they are eligible for and have received a booster shot.
    Cal/OSHA confirmed through its FAQs that this distinction applies to the quarantine periods taking effect beginning January 14, 2022. An employee's eligibility to receive a booster under the CDPH framework is based upon the CDC's 
    COVID-19 Booster Shot guidance.
  • Additionally, all employees identified as a close contact, regardless of their vaccination status, must wear face coverings for 10 days following their exposure and follow the isolation requirements above if they test positive for COVID-19.
    • Unvaccinated and Booster Eligible Employees: Unvaccinated employees, employees who are fully vaccinated and eligible to but have not received a booster, and fully vaccinated and boosted employees who have COVID-19 symptoms are subject to two quarantine periods.
      • Five-Day Quarantine: A close contact may return to the workplace after five days if the employee tests negative using a specimen collected on day five or later.
      • Ten-Day Quarantine: A close contact may return to the workplace after 10 days without testing.
    • Fully Vaccinated and Boosted or Not Yet Booster-Eligible Employees: There is no quarantine requirement for asymptomatic, fully vaccinated employees who have received a booster or are not yet eligible to receive a booster as long as the employee takes a COVID-19 test on the fifth day and receives a negative result.

Employers Obligations?

These new regulations are extremely complicated. Further, there may be additional nuances that apply to specific industries. Employers need to comply with current requirements under the Cal/OSHA ETS, the CDPH, and Governor Newsom's Executive Orders (to say nothing of county and local orders).

Employers should, if they have not already, task someone in their business with reviewing these rules and ensuring compliance. Employers should have a single of point of contact for all COVID exposures and positive cases so that the business can ensure a consistent and compliant message. With ever changing rules innocent mistakes can happen. The goal is not to have too many.

If you have questions about California’s Emergency Temporary Standards or any Labor & Employment issue, reach out to or any of our experienced employment attorneys at Berliner Cohen, LLP.