Employment Law Alert: Cal/OSHA COVID-19 Prevention Non-Emergency Regulations Effective February 3, 2023

On February 3, 2023, the Cal/OSHA COVID-19 Prevention Non-Emergency Regulations were approved by the Office of Administrative Law and became effective. The new regulations will remain in effect for two years after the effective date, except for the recordkeeping subsections which will remain in effect for three years.

Cal/OSHA has published FAQs regarding the new regulations, and a model COVID-19 Prevention Procedure.

These new regulations replace the Emergency Temporary Standards (“ETS”). Overall, the new regulations are less burdensome for employers, but they still include some of the same requirements found in the ETS, including:

• Identify COVID-19 health hazards and develop methods to prevent transmission in the workplace.
• Investigate and respond to COVID-19 cases at the workplace.
• Exclude COVID-19 cases from the workplace in accordance with California Department of Public Health (“CDPH”) isolation/quarantine guidelines and any other applicable local or state health orders.
• Provide face coverings when CDPH requires their use, and respirators upon request.
• Maintain records of COVID-19 cases in the workplace.
• Report information about employee deaths, serious injuries, and serious occupational illnesses to Cal/OSHA.

Important changes to the regulations include:

• Eliminates Exclusion Pay: Under the new regulations, employers are no longer required to pay employees while they are excluded from work due to COVID-19 exposure or illness contracted from work. The regulations, however, still require employers to provide employees with information regarding COVID-19 related benefits that they may be entitled to under federal, state, or local laws; their employer’s leave policies; or leave guaranteed by contract.

• Written COVID-19 Procedures: Employers are no longer required to maintain a standalone COVID-19 Prevention Plan, but instead, may include their COVID-19 procedures in their written Injury and Illness Prevention Program (“IIPP) (required for all employees under California law) or in a separate document.

• Testing: The new regulations still require employers to make testing available at no cost and during paid time to all employees who had a close contact in the workplace (except returned cases within the last 30 days), and to all employees in the exposed group during an outbreak or a major outbreak. However, the regulations eliminate the requirement to provide testing to employees who have symptoms but no close contact in the workplace.

• Notice: The new regulations incorporate the notice requirements under Labor Code Section 6409.6 (as amended by AB 2693). AB 2693 sets forth the requirement for providing notice to employees of a workplace exposure, and provides employers with the option to provide notice either through a written notification or a worksite posting.

• Reporting: Employers must report major outbreaks to Cal/OSHA, but are no longer required to report non-major outbreaks to local health departments (unless required by applicable local health department orders).

• Ventilation: Employers must review CDPH and Cal/OSHA guidance regarding ventilation, including the Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments. Employers must develop, implement, and maintain effective methods to prevent transmission of COVID-19 including one or more of the following: maximize the supply of outside air to the extent feasible; filter circulated air through a MERV-13 filter or similarly efficient filters; and/or use High Efficiency Particulate Air (HEPA) filtration units.

• Training: Employers are still required to provide COVID-19 hazard prevention training to employees, but the new regulations eliminate the detailed training requirements specified in the ETS, and allow employers to incorporate COVID-19 prevention training into trainings required under the IIPP standard.

The Non-Emergency regulations also include important changes to the definition of “close contact,” which has been updated to align with the definition under the CDPH. Determining who is a close contact is dependent on the size of an employer's indoor space.

• For indoor airspaces of 400,000 or fewer cubic feet, “close contact” is defined as sharing the same indoor airspace 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.

• For indoor airspaces of greater than 400,000 cubic feet, “close contact” is defined as being within six feet of 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.

• 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.

*         *         *

For more detailed discussion of the key components of the COVID-19 Prevention Non-Emergency Regulations, please see our On-Demand Webinar: 2023 California Employment Law Update.

Employers should update their COVID-19 prevention procedures and comply with the other requirements in the new regulations.

Employers seeking further guidance may contact any of the firm’s attorneys.