On December 31, 2022, the Cal/OSHA Emergency Temporary Standards (“ETS”), expired after being in place since November 2020. On December 15, 2022, the California Occupational Safety & Health Standards (“Cal/OSHA”) Board voted to adopt non-emergency COVID-19 regulations to replace the ETS.
The new regulations are set to take effect sometime this month (January 2023), once the Office of Administrative Law (“OAL”) completes its review. Once finalized, the new regulations will remain in effect for two years (but the recordkeeping requirements will remain in effect for three years).
The non-emergency regulations contain some of the same requirements as the ETS, but they also include new provisions. Although the non-emergency regulations maintain many of the requirements of the ETS, below is a summary of the notable revisions.
“Close Contact” – The definition of “close contact” is revised to be consistent with the definition of “close contact” provided by the California Department of Public Health (“CDPH”). Accordingly, the definition is based on the size of the workplace in which the exposure took place, regardless of the use of face coverings:
For indoor spaces of 400,000 or less cubic feet per floor, a close contact is sharing the same indoor space as a COVID-19-infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period (as defined) regardless of the use of face coverings.
For indoor spaces of more than 400,000 cubic feet per floor, a close contact is being within six feet of the COVID-19-infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period (as defined) regardless of the use of face coverings.
Offices, suites, rooms, waiting areas, break or eating areas, bathrooms or other spaces that are separated by floor-to-ceiling walls are considered distinct indoor spaces.
“Infectious Period” – Unless otherwise defined by the CDPH, infectious period means as follows:
-For a COVID-19-infected person who develops symptoms (i.e., symptomatic): From two days before the date of symptom onset until: (a) 10 days have passed after symptoms first appeared, or through day five if testing negative on day five or later; and (b) 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
-For a COVID-19-infected person who never develops COVID-19 symptoms (i.e., asymptomatic): From two days before the positive specimen collection date through 10 days (or through day five if testing negative on day five or later) after the date on which the specimen for their first positive test for COVID-19 was collected.
-“Exposed Group” – The definition of “exposed group” will remain the same; however, the “passthrough exception” will be applicable regardless of whether the employee is wearing a face covering or not.
-“Returned Cases” – A returned case is a person who returned to work for 30 days after the initial onset of COVID-19 symptoms or, if the person never developed COVID-19 symptoms, for 30 days after the first positive test. Under the ETS, a returned case was considered to be 90 days instead of 30. If a period of other than 30 days is required by a CDPH, that period shall apply.
Injury and Illness Prevention Program
Under the non-emergency regulations, employers are not required to maintain a separate written COVID-19 prevention plan, but employers must address the requirements of the non-emergency regulation under their Injury and Illness Prevention Program (or in a separate document). The program must include the following requirements:
-Provide COVID-19 prevention training to employees.
-Provide face coverings as required by the CDPH and respirators to employees upon request.
-Identify COVID-19 hazards and develop systems to prevent the spread of COVID-19 in the workplace.
-Investigate and respond to COVID-19 cases and close contacts. This requirement comprises excluding employees that are COVID-19 cases and following the return-to-work protocol described below.
-Provide testing to employees in accordance with the regulations’ requirements.
-Provide notice to employees of COVID-19 cases in the workplace.
-Maintain records of cases and report serious illnesses as required under the regulations.
Removal of Exclusion Pay
Employers are no longer required to provide exclusion pay. Employers must still provide to employees who are excluded from the workplace information regarding COVID-19-related benefits that the employees may be entitled under federal, state, or local laws, or the employer’s leave policies / applicable agreements. But note, Cal/OSHA is apparently intent on including it in a likely upcoming general infectious diseases standard. The standard is currently being drafted internally, and it was confirmed in the Board meeting on December 15, 2022 that the current draft includes exclusion pay for employees kept from the workplace due to COVID-19 infection.
Return to Work Criteria
The return-to-work criteria under the non-emergency regulations is similar to the previous criteria under the ETS with some revisions, which are easier to satisfy.
-COVID-19 cases without symptoms: An employee can return to work once their infectious period is over.
-COVID-19 cases with symptoms: An employee can return to work after the shorter of: (1) the infectious period; or (2) 10 days after the onset of symptoms and 24 hours have passed without a fever with the use of fever-reducing medication.
Upon returning from work, regardless of vaccination or past infection with COVID-19, or lack of COVID-19 symptoms, the employee must wear a mask until 10 days have passed since the date that the COVID-19 symptoms began or from the first positive test if there are no COVID-19 symptoms.
Under the non-emergency regulations:
In non-outbreak situations, employers are only required to provide testing (at no cost, during the employee’s paid time) to employees who had close contact with the exception of returned cases (as defined).
In outbreak situations, employers shall provide testing (at no cost, during the employee’s paid time) to employees within the exposed group, regardless of vaccination status except for returned cases (as defined) and employees who were not present at the workplace during the relevant 14-day outbreak period. Employers shall then make testing available on a weekly basis (and twice/week in major outbreaks) to all employees in the exposed group who remain at the workplace.
Consistent with AB 2693 (i.e., Labor Code section 6409.6 – effective Jan. 1, 2023), rather than being required to provide an individual notice of potential exposure to all employees, employers will be able to display a notice of potential exposure in the workplace. The notice must be prominently posted within one business day from the employer’s receipt of notice of potential exposure and be displayed for 15 calendar days, including on an employee portal. The notice must include the following information:
-The dates that an employee or subcontractor with COVID-19 was at the worksite during their infectious period.
-The location of the exposure (this information can be general, e.g., the department, floor, building area, etc.).
-Contact information for employees to receive information related to COVID-19 benefits.
-Contact information for employees to receive the cleaning and disinfection plan.
Employers can also provide written notice to all relevant employees and employers of subcontracting employees that were at the worksite through the manner in which the employer usually uses to communicate employment-related information such as by personal service, email, or text message.
Employers must keep a record of all the dates that the notice was posted. Employers must also maintain records of written notifications for at least three years.
Under the non-emergency regulations, and consistent with AB 2693, employers are no longer required to report outbreaks to their local health department. That said, employers should consult orders from applicable local health departments to confirm. As noted below, major outbreaks must be reported to Cal/OSHA.
Under the non-emergency regulation, employers are required to implement methods of reducing COVID-19 by adopting a method to improve ventilation by (1) maximizing the supply of outside air to the extent feasible, (2) filtering circulated air through a MERV-13 filter or similarly efficient filters, or (3) using HEPA filtration units.
The non-emergency regulation clarifies that employers must keep a record and track all COVID-19 cases. These records must be kept for at least two years.
COVID-19 Outbreaks (Section 3205.1)
Under the non-emergency regulation, requirements for outbreaks and major outbreaks are combined. This section applies if there are three or more employee COVID-19 cases at the workplace during their infectious period until there are one or fewer new COVID-19 cases in the exposed group within a 14-day period. This is revised from zero new COVID-19 cases under the ETS.
Major outbreaks have specific requirements as well. A major outbreak is considered 20 or more COVID-19 cases in an exposed group at the workplace within a 30-day period. The major outbreak must be reported to Cal/OSHA. Similar to the ETS, employers must test employees in the exposed group at least twice a week regardless of vaccination status.
Cal/OSHA is expected to release updated FAQs and a model plan. Employers should review the non-emergency regulation and consult with our office to ensure compliance.
Georges Cote LLP advocates on behalf of personal injury victims throughout Massachusetts. For a free initial consultation regarding your legal options, please call 617-884-1000 or contact us online. We are located in Chelsea.
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