California: Cal/OSHA Adopts New COVID Regulation

By Swerdlow Florence Sanchez Swerdlow & Wimmer

December 16, 2022

On Thursday December 15th, Cal/OSHA voted to adopt a new Non-Emergency COVID Regulation to replace the current COVID Emergency Temporary Standard (“ETS”). The ETS will remain in effect while the Office of Administrative Law (“OAL”) reviews the Non-Emergency COVID Regulation. The OAL has thirty working days to review. If the OAL approves the new regulation, it will remain in effect for two years.
           
In general, the new Non-Emergency COVID Regulation places fewer burdens on employers than the ETS did. Many of the requirements under the ETS have been removed entirely. However, some requirements have been modified, for example:
 
•    There is no provision requiring employers to maintain wages or provide specific rights or benefits to an employee excluded from work due to COVID, other than what is required under applicable federal, state, or local laws.

•    The “infectious period” has been reduced from 10 days since symptoms appeared to either 10 days since symptoms appeared or 5 days with a negative COVID test. Both options also require 24 hours without a fever or the use of fever reducing medications.

•    Workplace COVID procedures can now be addressed in either an employer’s Injury and Illness Prevention Plan (“IIPP”) or a separate COVID Prevention Program (“CPP”).

•    Employers no longer have to make COVID testing available to employees who have COVID symptoms, but who did not have close contact in the workplace.

•    Employers can now exit outbreak procedures as soon as there are one or fewer new COVID cases in the exposed group for a 14-day period.

•    The new Non-Emergency COVID Regulation will use the California Department of Public Health’s definition of “close contact,” which is currently defined as sharing the same indoor airspace as a COVID case for a cumulative total of 15 minutes over a 24-hour period during the COVID case’s infectious period if the space is under 400,000 cubic feet, or being within 6 feet within that same period if the indoor airspace is greater than 400,000 cubic feet.

•    Ventilation requirements have become slightly more burdensome. For indoor workplaces, employers must maximize the supply of outside air, employ the highest level of filtration efficiency compatible with existing mechanical ventilation systems, and/or use High Efficiency Particulate Air (HEPA) filtration units.

Employers should update their CPP and/or IIPP in preparation for the new year. Contact your SFSS&W attorney if you have any questions regarding the new Non-Emergency COVID Regulation and to update your Employee Handbook for the 2023 year.

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