On December 15, 2022, the California Occupational Safety and Health Standards Board (Cal/OSHA) voted to adopt COVID-19 Prevention Non-Emergency Regulations (Non-Emergency Regulations). Approval by the Office of Administrative Law (OAL) is expected shortly, and the new regulations are expected to take effect this month. Although the new regulations include some requirements similar to those currently found in the Cal/OSHA's COVID-19 Prevention Emergency Temporary Standards (ETS), the Non-Emergency Regulations also incorporate significant differences that will change how employers engage with their employees and operate their businesses with respect to COVID-19.
The Non-Emergency Rule Is Finite
Once enacted, the Non-Emergency Regulations will remain in effect for two years and will replace the current ETS. After two years, the regulation expires, but employers will still need to maintain notices of COVID-19 cases and information on COVID-19 cases for three years.
Key Changes and Takeaways for California Employers
- Exclusion Pay No Longer Required: In a significant change from the ETS, the Non-Emergency Regulations will no longer require employers to pay their employees while they are excluded from work due to COVID-19-related isolation or quarantine due to workplace exposure. Instead, the new regulations only require employers to provide employees with information regarding COVID-19-related benefits to which the employees may be entitled under federal, state, or local laws or the employer's leave policy, or as guaranteed by contract. Employers should note that exclusion pay is still required until the Non-Emergency Regulations go into effect.
- Daily Screening No Longer Required: The Non-Emergency Regulations no longer require employers to develop and implement daily screening procedures as was previously required by the ETS. Employers should note that daily screening is still required until the Non-Emergency Regulations go into effect.
- Employers Must Report Major Outbreaks to Cal/OSHA: In another significant change from the ETS, employers will be required to report major outbreaks (described in detail below) to Cal/OSHA. However, the new regulations are unclear regarding an employer's obligation to continue to report/update Cal/OSHA regarding a major outbreak and/or to report outbreaks that predate the new regulation changeover. This new reporting requirement is in addition to preexisting reporting requirements regarding fatalities and serious injuries and illnesses.
- Other Changes to Outbreak Protocols: The Non-Emergency Regulations consolidate and significantly revise the ETS definitions of and requirements regarding minor and major COVID-19 outbreaks.
- Definition/Scope Changes: Under the new regulations, an "outbreak" is generally defined as three or more employee COVID-19 cases within an exposed group in a 14-day period. The definition of "exposed group" has also been expanded to include employer-provided transportation and employer-provided housing. Additionally, the new regulations separately define a "major outbreak" as 20 or more COVID-19 cases within an exposed group in a 30-day period.
- In a significant change from the ETS, the Non-Emergency Regulations outbreak protocols shall apply to all categories of outbreaks until there are one or fewer new COVID-19 cases in the exposed group for a 14-day period.
- Three Important Updated Definitions: As occurred in each iteration of the ETS, Cal/OSHA has updated several important definitions of which employers should be aware.
- "Close Contact:" The Non-Emergency Regulations expressly defer to and adopt the CDPH definition of "close contact." Given that Cal/OSHA updated its online guidance in June 2022 to reflect this same change, employers may already be familiar with this definition. "Close contact" is currently defined by the CDPH based upon the size of the workplace in which the exposure occurs. For indoor spaces that are 400,000 or fewer cubic feet, close contact is defined as sharing the same indoor airspace for a total of 15 or more minutes over a 24-hour period. For indoor spaces of greater than 400,000 cubic feet, close contact is defined as being within six feet for a total of 15 minutes or more over a 24-hour period. However, for the purposes of these calculations, offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls shall be considered distinct indoor spaces.
- "Returned Case:" The Non-Emergency Regulations significantly reduce the scope of what constitutes a "returned case," stating that a person is only considered a returned case 30 days after the initial onset of symptoms or the date of the first positive test if asymptomatic—not 90 days as it was under the ETS. This new definition significantly limits the exemptions for testing requirements relating to close contacts and exposed groups during outbreaks.
- "Infectious Period:" Employers continue to be required to exclude COVID-19 cases from the workplace until the conclusion of their "infectious period;" however, the new regulations create the potential for a shortened infectious period based upon a negative test taken on Day Five or later. The Non-Emergency Regulations define an infectious period for symptomatic cases as beginning two days before the onset of symptoms and lasting until: (a) 10 days since the symptoms first appeared or a negative test taken at least five days after the onset of symptoms; (b) 24 hours without a fever; and (c) symptoms have improved. Asymptomatic cases are defined as beginning two days before the onset of symptoms and ending either 10 days after the first positive test or a negative test taken at least five days after the first positive test.
- Testing: As with the ETS, the Non-Emergency Regulations require employers to make testing available at no cost and during paid time to close contacts. However, employers will no longer be required to provide testing for any symptomatic employee. Additionally, employers will no longer be required to provide weekly testing for employees who are unable to wear face coverings when required by law, such as the "exposed group" during a workplace outbreak.
- Ventilation: The Non-Emergency Regulations will impose ventilation requirements more restrictive than those in the ETS. The new regulations require that employers review CDPH and Cal/OSHA guidance to develop, implement, and maintain effective methods to prevent COVID-19 transmission by improving ventilation. Employers will be required to do at least one of the following to increase ventilation: (1) maximize outside air; (2) use MERV-13 filters; or (3) use standalone HEPA filters. Additionally, when a workplace experiences a COVID-19 outbreak and ventilation is inadequate to reduce the risk of COVID-19 transmission in indoor areas occupied by employees for extended periods of time, employers must use standalone HEPA units even after the outbreak has passed.
- Notice Requirements: Although the Non-Emergency Regulations state that notice shall be provided to employees and independent contractors who had close contact with an employee with COVID-19 "as soon as possible," the new regulations specifically defer to the notice requirements in California Labor Code section 6409.6 or its successor, which is AB 2693 as of January 1, 2023. AB 2693 is effective until January 1, 2024, and requires notice of close contact to be given within one business day.
In a significant change from the ETS, AB 2693 gives employers the option to provide notice by either a workplace posting or by written notice (personal service, email and text messages are acceptable) to all employees and employers of subcontracted employees who were on the premises at the same worksite as the confirmed case of COVID-19 within the infectious period. AB 2693 further specifies that if the employer chooses to post a notice in the workplace, the notice must include: 1) the dates the COVID-19 employee was on the premises; 2) the location of the exposure; 3) contact information for employees to receive COVID-19-related benefits; and 4) contact information for employees to receive information regarding the employer's cleaning and disinfection plan. With either notice option, notice must be given within one business day.
- Local Health Authority (LHA) Notification: Pursuant to AB 2693, employers are no longer automatically required to report all COVID-19 cases to LHAs except where required by a different authority, such as a local public health order. The Non-Emergency Regulations reflect these changes and will require employers to report COVID-19 case information to LHAs only when an LHA requires or requests notification. To ensure proper compliance, employers are advised to familiarize themselves with their local health authority's requirements and seek the advice of legal counsel.
- Recordkeeping: The new regulations contain much-needed clarification regarding recordkeeping requirements for COVID-19-related information and documentation and, thankfully, the time period is much shorter than the Cal/OSHA exposure and medical records maintenance requirement of 30 years. The Non-Emergency Regulations require employers to keep records of all COVID-19 cases for two years. These records must be kept confidential and include the employee's name, contact information, occupation, location where the employee worked, date last on site, and dates of positive test/diagnosis. Additionally, employers will need to maintain COVID-19 notices (posted or individual written notices) for a period of at least three years, pursuant to AB 2693.
- Standalone COVID-19 Prevention Plan No Longer Required: The Non-Emergency Regulations will no longer require employers to maintain a standalone COVID-19 Prevention Plan. Instead, the new regulations will allow employers to address their COVID-19 procedures under the employer's standard Injury and Illness Prevention Program (IIPP) or a separate document, pursuant to Cal/OSHA Section 3203. When determining measures to prevent COVID-19 transmission, the regulations instruct the employers to consider a number of steps and requirements, including the following:
- Review of applicable orders and guidance from the State of California and local health departments regarding COVID-19 prevention controls, including: remote work; physical distancing; reducing the density of people indoors; moving indoor tasks outdoors; implementing separate shifts and/or break times; and restricting access to work areas.
- Provide COVID-19 hazard training for employees.
- Establish COVID-19 investigative procedures to determine the day and time a COVID-19 case was last present, the date of positive test(s)/diagnosis, and the date of first symptoms, as well procedures to identify and respond to persons with symptoms in the workplace.
- Establish effective methods and/or procedures for responding to COVID-19 cases that include employee exclusion through the infectious period, face coverings, close contacts, and return to work.
- Establish effective control measures to prevent transmission in the workplace, including isolation and respirators.
- Provide employees upon exclusion with information regarding COVID-19-related benefits available under federal, state, and local laws and the employer's own leave policies, and as guaranteed by contract.
- Face Coverings: The Non-Emergency Regulations require employers provide face coverings and ensure they are worn by employees when CDPH requires their use. Additionally, employers are still required to provide respirators (e.g., N-95 masks) upon request.
Next Steps for Employers
As indicated above, it is anticipated that the OAL will approve the Non-Emergency Regulations shortly and that these new requirements will go into effect in mid-January 2023. Cal/OSHA has indicated that it will issue a set of FAQs to provide additional guidance to employers. Cal/OSHA may enact a grace period to provide additional time for employers to comply. However, given the complexity of the revised regulations, DWT recommends that California employers immediately evaluate their current procedures and obtain legal counsel to ensure that they are in compliance. Moreover, employers are reminded to continue to review health authority (CDPH and LHA) orders and guidance, as well as applicable state and local laws and ordinances, and take steps to comply with applicable requirements—particularly because jurisdictions have orders and guidelines that may be more restrictive than those instituted by Cal/OSHA.
Assistance of experienced OSHA counsel is recommended. DWT's OSHA team is available to advise and assist employers in complying with this constantly evolving and complex legal area. In the meantime, DWT will continue to monitor the OAL approval process and provide updates as they occur.