February 13, 2023

What Cal/OSHA’s “Permanent” COVID Standards Mean for Employers

Effective Feb. 3, 2023, California has implemented new, “permanent,” COVID-19 standards. The new regulations were adopted by Cal/OSHA on Dec. 15, 2022, but only became effective upon the review and final approval by the Office of Administrative Law. These non-emergency regulations—slated to remain in effect for two years—supplant the COVID-19 Prevention Emergency Temporary Standard (ETS) that have been in effect since early in the pandemic.

The non-emergency regulations abandon core parts of the ETS, include new definitions for key terms, and update requirements for important provisions. We discuss the primary changes below. The regulation itself is available online, as well as a copy provided by Cal/OSHA comparing the differences between the ETS and the new regulation.

An End to Exclusion Pay

The non-emergency regulations do not require employers to maintain exclusion pay (an excluded employee’s earnings, seniority, rights, and benefits). All that employers must do under the new regulations is inform confirmed COVID-19 cases and close contacts about potential COVID-19 benefits under federal or local laws (where applicable). This does not affect employees who may receive paid time off under other federal, state, and local laws, as well as through collective bargaining agreements or other employer policies.

Updated Notice Requirements

The new regulations change the timeframe by which an employer must notify employees of a COVID-19 case from one day to “as soon as possible,” providing some much-needed flexibility.

Employers may also now choose between: 1) providing written notice to individual employees or contractors who have a close contact, or 2) displaying a workplace notice. If employers choose the second option, they must post the notice within one business day and must leave the notice up for 15 days. If the employer uses an employee portal in lieu of a physical posting, the notice should be posted on the portal. These notices must be both in English and the language understood by the majority of the employees.

New Definitions for Key Terms

“Close Contact” is Now Keyed to Workspace Size

  • For indoor spaces of 400,000 or fewer cubic feet per floor, a close contact is now defined as sharing indoor airspaces with “a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, as defined in the regulations, regardless of the use of face coverings.”
  • For indoor spaces of greater than 400,000 cubic feet per floor, a close contact is defined as “being within six feet of the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, as defined in the regulations, regardless of the use of face coverings.

“Infectious Period” is Now Defined by the Department of Health

The new regulations use the definition of “infectious period” found in the most recent California Department of Public Health (CDPH) State Health Officer Order. This Oct. 13, 2022, order defines an infectious period as:

  • For symptomatic infected persons, two days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5 to10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR
  • For asymptomatic infected persons, two days before the positive specimen collection date through Day 10 after positive specimen collection date (or through Days 5 to10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.

“Returned Case” Timelines Shortened

Returned cases are individuals who had COVID-19, returned to work after following the correct return-to-work procedures, and who thereafter did not develop any COVID-19 symptoms. Under the ETS these “returned cases” were to be defined as such for 90 days following the onset of symptoms or a positive test. The new regulations shorten this timeframe to 30 days.

No More Daily Screenings

The new regulations do away with the ETS requirement that employers develop and implement a process for daily screening employees for COVID-19 symptoms. Now, employees are to be “encouraged” to report COVID-19 symptoms and stay home when sick.

Slight Change in Return-to-Work Criteria

Under the new regulations, the continued presence of COVID-19 symptoms (other than fever) is irrelevant if the individual tests negative on the fifth day.

Relaxed Ventilation Rules

The new regulations eliminate ETS language requiring employers with indoor workspaces to “evaluate how to maximize ventilation with outdoor air.” The obligation now on these employers is to improve ventilation in a fashion that incorporates at least one of the following:

  • Maximizes, “to the extent feasible,” the supply of outside air (provided the Air Quality Index is above 100);
  • Filters circulated air through a MERV-13 filter, or “the highest level of filtration efficiency compatible with the existing mechanical ventilation system;” or
  • Uses HEPA filtration units in indoor spaces when ventilation is inadequate.

COVID-19 as a Workplace Hazard

Employers are no longer required to maintain a stand-alone COVID-19 prevention plan. The non-emergency regulations now allow employers to incorporate COVID-19 information and training into their general injury and illness prevention programs (known as IIPPs). (Employers may still choose, however, to maintain COVID-19 procedures as a separate document.)

The IIPP (or separate COVID-19 procedures document) must include general information about workplace exposure and transmission, measures to prevent workplace COVID-19 transmission, and methods for responding to COVID-19 cases at the workplace.

New Recordkeeping and Reporting Requirements

The new regulations remove the prior requirement that employers self-report COVID-19 cases and outbreaks to local public health departments (unless independently required by local agencies) and replace it with a requirement that “major” outbreaks (defined as 20 or more cases in a work location, working area, or common area) be reported to Cal/OSHA. No specific timeframe is given for this reporting to Cal/OSHA.

While the new regulations no longer require employers to keep records of close contacts, employers are still required to track all COVID-19 cases.

As the name suggests, Cal/OSHA’s “permanent” standard shows that the agency is keen on keeping a close watch over COVID-19 in the workplace for the foreseeable future (at least the next two years).

If you need assistance interpreting or complying with Cal/OSHA’s new, non-emergency COVID-19 standard, please contact Payne & Fears LLP.