Audit, Compliance and Risk Blog

California continues temporary requirements for COVID vaccination and testing

Posted by Jon Elliott on Mon, Feb 07, 2022


Although the Occupational Safety and Health Administration (OSHA) has been forced by court action to convert its would-be “emergency temporary standard (ETS)” under which large employers would have been required to protect unvaccinated employees from COVID-19 infections into a proposal (I wrote about the initial ETS HERE), some states can and are moving ahead with similar requirements. Notably, California’s Division of Occupational Safety and Health (DOSH, but universally called Cal/OSHA) recently revised and renewed its own COVID-19 ETSs. The remainder of this note summarizes these standards, which cover five sections of Title 8 of the California Code of Regulations (CCR):

  • 3205 COVID-19 Prevention

  • 3205.1 Multiple COVID-19 Infections and COVID-19 Outbreaks

  • 3205.2 Major COVID-19 Outbreaks

  • 3205.3 COVID-19 Prevention in Employer-Provided Housing

  • 3205.4 COVID-19 Prevention in Employer-Provided Transportation.

How does the COVID-19 “emergency” justify emergency standards?

California law establishes standards and procedures for state agencies to adopt an “emergency regulation” (Cal. Government Code 11346.1). For COVID-19, the state’s Occupational Safety and Health Standards Board (OSHSB) adopted temporary rules on November 19, 2020, relying on a State of Emergency declared by Governor Newsom covering the public health hazards of COVID-19 and on the Governor’s subsequent executive orders (including stay-at-home orders), and citing evidence of the likelihood of COVID-19 spreading via workplaces. Because the state law limits emergency regulations to 180 days’ duration, OSHSB has reaffirmed the continuing emergency and readopted its regulations – with amendments – in June 2021 and again in December 2021.

Who is subject to the standards?

The emergency regulations apply to all “employees and places of employment,” except the following:

  • Work locations with one employee who does not have contact with other persons.

  • Employees working from home.

  • Employees in a variety of healthcare settings with occupational exposure to “aerosol transmissible diseases” (covered by 8 CCR 5199).

  • Employees teleworking from a location of their choice, not under the employer’s control.

Note that this definition is based on employees, not employers, so the standards apply to any employer with one or more covered employees.

What must employers do?

Employers must establish, implement, and maintain an effective, written COVID-19 Prevention Program. These can be stand-alone documents, or may be integrated into the employer's required Injury and Illness Prevention Program (IIPP; I discussed them HERE ). Required written elements of a COVID-19 Prevention Program include:

  • System for communicating – do all the following in a form readily understandable by employees:

    • ask employees to report, without fear of reprisal, COVID-19 symptoms, possible close contacts, and possible workplace COVID-19 hazards.

    • describe how employees with medical or other conditions that put them at increased risk of severe COVID-19 illness can request accommodations.

    • provide information about access to COVID-19 testing.

    • communicate information about COVID-19 hazards and the employer's COVID-19 policies and procedures to employees and to others in contact with the workplace.

  • Identification and evaluation of COVID-19 hazards.

    • allow employee and authorized employee representative participation in the identification and evaluation of COVID-19 hazards.

    • develop and implement a process to screen employees and respond to employees with COVID-19 symptoms. The employer may ask employees to evaluate their own symptoms before reporting to work. An employer that conducts screening indoors at the workplace must ensure use of face coverings during screening by screeners and any employees who are not fully vaccinated and, use of non-contact thermometers if temperatures are measured.

    • develop COVID-19 policies and procedures to respond effectively and immediately to individuals at the workplace who are COVID-19 cases, to prevent or reduce the risk of workplace transmission.

    • conduct a “workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards. Employers shall treat all persons, regardless of symptoms or negative COVID-19 test results, as potentially infectious.”

    • For indoor locations, evaluate how to maximize ventilation with outdoor air; the highest level of filtration efficiency compatible with the existing ventilation system; and whether High Efficiency Particulate Air (HEPA) filtration units, or other air cleaning systems, would reduce the risk of transmission.

    • review applicable orders and guidance from the state and the local health department related to COVID-19 hazards and prevention.

    • evaluate existing workplace COVID-19 prevention controls and the need for different or additional controls.

    • conduct periodic inspections as needed to identify unhealthy conditions, work practices, and work procedures related to COVID-19 and to ensure compliance with employers' COVID-19 policies and procedures.

  • Investigating and responding to COVID-19 cases in the workplace

    • have an effective procedure to investigate workplace COVID-19 cases, including seeking details about exposures and information from employees

    • Within one business day of the time the employer knew or should have known of a COVID-19 case, give written notice, in a form readily understandable by employees, that people at the worksite may have been exposed (protecting privacy)

    • Make COVID-19 testing available at no cost and during paid hours, to employees who were exposed

    • Investigate whether workplace conditions could have contributed to the exposure risk and what could be done to reduce exposure hazards

  • Correction of COVID-19 hazards - implement effective policies and/or procedures for timely correction of unsafe or unhealthy conditions, work practices, policies and procedures.

  • Training and instruction- with required information about COVID-19, and the employer’s policies and procedures.

  • Face coverings – provide to all non-vaccinated employees and when required by health agency order, and ensure they are worn properly except by employees exempt because of assignment (e.g., when working alone) or medical reasons; provide upon request to all employees when not required to wear

  • Other engineering controls, administrative controls, and personal protective equipment – including adequate ventilation; cleaning and disinfecting procedures; handwashing equipment; personal protective equipment (PPE) such as gloves, goggles, and face shields; and testing of symptomatic employees.

  • Reporting, record keeping and access – report and maintain records about activities under these rules, and about cases in the workplace.

  • Exclusion of COVID-19 cases and employees who had a close contact - to limit transmission of COVID-19 in the workplace.

  • Return to work criteria – for employees who had symptoms, who tested positive but were asymptomatic, and whenever required by health agency order

The December readoption revises a number of these requirements. It also adds new sections directed to:

  • a workplace where three or more employee COVID-19 cases within an exposed group visited the workplace during their high-risk exposure period at any time during a 14-day period

  • a workplace where 20 or more employee COVID-19 cases within an exposed group visited the workplace during their high-risk exposure period at any time during a 30-day period

  • employer-provided housing

  • employer-provided transportation

What’s next?

The latest revised version of Cal/OSHA requirements became effective on January 14, 2022. Organizations with employees in California must comply with these requirements, and employers outside California should consider voluntary programs consistent with these requirements.

Self-Assessment Checklist

If the organization has employees in California, has it reviewed its COVID-19 prevention activities to ensure they comply with the latest requirements?

If the organization has no employees in California, has it implemented COVID-19 prevention and response procedures?

Where Can I Go For More Information?

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About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years. 

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at:

Tags: Health & Safety, OSHA, Safety and Health at Work, Covid-19, workplace safety, California, Vaccination, Healthcare