Cal/OSHA's COVID-19 Prevention Rule: From Emergency Temporary Standard to "Permanent" Rule

Cal/OSHA's COVID-19 Emergency Temporary Standard (ETS), which was first adopted November 2020, is set to expire after December 31, 2022. In its place, the Cal/OSHA Standards Board has published, and is expected to enact, a proposed, semi-permanent rule that is scheduled to take effect on January 1, 2023.

On September 15, 2022, as part of the notice and comment period, the Cal/OSHA Standards Board is holding a public hearing on the proposed rule. The proposed rule preserves many of the requirements in the current ETS, but also contemplates key changes from the ETS. Employers should be aware of these proposed changes, as well as the proposed rule's final language, and ensure that employment policies and practices are compliant with new obligations.

What Is the Proposed Rule's Effective Period?

Although the proposed rule is labeled a "permanent" rule, all of its requirements expire after two years, except for certain recordkeeping provisions related to COVID-19 cases, notifications, and production of information and documents to government agencies. One year later (three years from the new rule's effective date), the proposed rule's recordkeeping requirements likewise expire. Employers can therefore anticipate the COVID-19 requirements lifting on January 1, 2025, and the recordkeeping requirements lifting on January 1, 2026.

What Are Key Components of the Proposed Rule?

Some of the key aspects of the proposed rule are:

• Exclusion Pay May Be Eliminated. The proposed rule does not include a requirement for employers to provide exclusion pay to employees who are excluded from the workplace due to COVID-19. While this change is a significant departure from the ETS requirements, employers will still need to monitor and comply with any applicable state or local laws that require exclusion pay.
• COVID-19 to Be Addressed Through an Injury and Illness Prevention Program. The proposed rule identifies that COVID-19 is a workplace hazard employers should address through their written injury and illness prevention plan (IIPP). As part of this shift, the proposed rule no longer identifies every mandatory element of an employer's plan to address COVID-19 in the workplace. This change permits employers greater flexibility in how employers' written documents address COVID-19, particularly in response to updated guidance from California Department of Public Health's (CDPH or other health authority).
• Reporting and Recordkeeping. The proposed rule leaves the ETS reporting requirements intact, and employers will need to continue to report COVID-19 cases and "outbreaks" to local health departments. Employers' recordkeeping requirements are slated to expand under the proposed rule, and employers will now need to keep records for all close contacts in addition to all COVID-19 cases. Employers must retain these confidential records for two years and immediately provide these records to Cal/OSHA, CDPH, local health departments, and the National Institute for Occupation Safety and Health upon request.
• Definitions Based Upon CDPH. The proposed rule continues to incorporate CDPH's definitions of "close contacts," "infectious period," and "returned case." At present, there is no conflict between Cal/OSHA's proposed definition and CDPH's current definition. However, as occurred in June of this year, CDPH can update its definition with little to no notice, which has considerable impact on an employer's obligations under Cal/OSHA. On June 8, CDPH updated its definition of "close contact" to include employees sharing the same "indoor airspace" (an undefined term that led to confusion as to its scope and application) for a cumulative 15 minutes or more over a 24-hour period. Employers should, therefore, be cognizant of substantive updates during the course of the proposed rule's effective period.
• Required Notice of COVID-19 Cases. The proposed rule includes language potentially providing employers with flexibility about how quickly they must notify employees, independent contractors, and any employer with an employee that they were in close contact with a COVID-19 case in the workplace. The rule requires notice "as soon as possible," unless Labor Code 6409.9(a) specifies a shorter notification period. Labor Code 6409 currently requires notice within one business day. Although the Labor Code requirement is set to expire on January 1, 2023, there is a bill currently before Governor Newsom that would extend this provision to January 1, 2024.

The above is not an exhaustive list of proposed changes, and further revisions to the proposed rule's language are possible following the September 15 hearing.

What Should Employers Do Now?

Employers' compliance obligations in California remain unchanged until the Cal/OSHA Standards Board adopts a permanent rule. Employers still should comply with the current requirements under the Cal/OSHA ETS (including incorporated CDPH guidance) and Governor Newsom's Executive Orders, as well as all applicable county and other local orders.

Employers can anticipate that many of the requirements in the proposed rule will ultimately be adopted in the rule's final version that is expected to become effective on January 1, 2023. Employers can therefore prepare for the new rule by reviewing the proposed text and any revisions adopted after the September 15 hearing and comparing those requirements with the employers' current policies and procedures to ensure compliance.

Assistance of experienced OSHA counsel is recommended. DWT's OSHA team is available to advise and assist with complying with this constantly evolving and complex legal area.