Cal/OSHA Update to COVID-19 Testing FAQs
Employers maneuvering their way through the past year’s public health emergency that is COVID-19 have inevitably encountered Cal/OSHA’s Emergency Temporary Standards (ETS) on COVID-19 infection prevention in the workplace published in November of 2020. And to assist in their understanding of the ETS, employers have also turned to the FAQs made available by Cal/OSHA in January of 2021. The goal of the FAQs was to clarify the ETS. Unfortunately, confusion has begotten confusion, and after a myriad of employer questions and even lawsuits by agricultural employers, the agency updated its FAQs on January 26 and again on February 26.
The newest FAQ update provides guidance on the topics of (1) testing and (2) the ETS’ scope of coverage. We will focus on the testing provisions here.
Sources of confusion in the original adoption of the ETS: Employers expressed uncertainty over specific language in the ETS. Cal/OSHA seemingly used the terms “offer” and “provide” interchangeably with regard to testing, and employers questioned whether there was a difference. Also, if a workplace exposure were to occur, employers were unsure whether that meant that they could require testing or could exclude from the workplace employees who refused to comply. Finally, employers grappled with the procedural aspects of testing administration (on-site 3rd party testing or sending employees to health care providers).
Original FAQs on testing require employers to inform employees on how to get tested during a workplace outbreak: The original guidance made clear that a work-related exposure during a minor or major outbreak triggers the requirement that an employer apprise employees on how they can obtain free COVID-19 testing during working hours when testing is in fact required. Left unanswered, however, were the details on arranging testing.
Newest FAQ update better explains where an employer can find testing for employees: The FAQ update now provides details on two main sources for employee testing, stating as follows:
- At the California Department of Public Health or the National Association of County and City Health Officials websites, click on the county or city health department in the area where you would like employees to be tested. Many local health departments maintain websites with up-to-date information on testing locations. Click on the appropriate health department's website and search for testing sites. Follow instructions to identify testing locations and schedule a test. All counties offer free testing for individuals at designated testing sites. For larger numbers of employees, employers may also choose to partner with the State of California Valencia Branch Laboratory to set up on-site testing (visit the Valencia Branch Laboratory website for more information).
- In the alternative, an employer can partner with a medical provider to establish a testing program. Some providers offer on-site testing of employees.
The guidance makes clear that however testing is arranged, employers must ensure employees do not incur any costs for COVID-19 testing.
Keep in mind, even if your employees are vaccinated you must continue to follow the OSHA ETS, even though the CDC relaxed its guidance. In addition, you must check with the county you are working in to see if it provides additional mandates. Contact the experts at McKague Rosasco LLP if you need guidance.
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