Cal/OSHA Standards Board Approves Non-Emergency COVID-19 Prevention Standard

The California Occupational Safety and Health (Cal/OSHA) Standards Board voted on December 15 to approve a non-emergency COVID-19 prevention standard. If approved by the Office of Administrative Law, this non-emergency standard, which contains several substantive changes to existing requirements, will replace the current Cal/OSHA emergency temporary standard (ETS), and will remain in effect for two years.

On December 15, the Cal/OSHA Standards Board voted to approve the new COVID-19 non-emergency prevention standard (Non-Emergency Standard). The Office of Administrative Law (OAL) has 30 days to complete its review and approve the Non-Emergency Standard. The OAL’s approval is highly likely. In the meantime, the current ETS will extend into 2023 unless the OAL completes its review and approves the Non-Emergency Standard before the end of this month.

Summarized below are the most significant changes between the ETS and the Non-Emergency Standard and, where appropriate, noteworthy changes of other COVID-19 requirements affecting employers statewide.

MAJOR CHANGES

Removal of Exclusion Pay Requirements

The ETS requires employers to maintain an employee’s pay and benefits during isolation and quarantine due to a work-related exposure. Once the Non-Emergency Standard is implemented, Cal/OSHA will no longer require that employers provide exclusion pay. Relatedly, the state 2022 COVID-19 Supplemental Paid Sick Leave law will expire on December 31, 2022.[1] It should be noted, however, that local jurisdictions in California may continue to provide for COVID-19-based supplemental sick leave benefits. Employers should monitor the requirements in all the locations in which they operate in California.

In addition, employees with COVID-19 or who otherwise would have been eligible for exclusion pay or COVID-19 supplemental paid sick leave under the soon-to-expire requirements may be eligible going forward for paid leave under the state’s paid sick leave law and/or employer-provided health benefit plans.

Removal of Daily Symptom Screening and of Certain No-Cost Testing Requirements

The ETS requires employers to screen employees for COVID-19 symptoms prior to entering their worksite. This type of screening will not be required under the Non-Emergency Standard.

Furthermore, the ETS requires that no-cost testing be provided to symptomatic employees. That requirement is not included in the Non-Emergency Standard.

However, the Non-Emergency Standard will still require employers to investigate COVID-19 illness at the workplace routinely, including identifying individuals who may have symptoms. As part of this requirement, the Non-Emergency Standard states the following: “The employer shall effectively identify and respond to persons with COVID-19 symptoms at the workplace. Employees shall be encouraged to report COVID-19 symptoms and to stay home when ill.”

Although health screening will no longer be required, given these other requirements employers will need to take steps to identify and respond to employees who have COVID-19 symptoms in the workplace.

Changes to Outbreak Protocols

As with the ETS, the Non-Emergency Standard contains specific requirements during non-major outbreaks (three cases within an “exposed group”[2] in a 14-day period) and major outbreaks (20 cases within an exposed group in a 30-day period).

Many of the outbreak requirements from the ETS will carry over to the Non-Emergency Standard. However, there are a few important changes to keep in mind:

• Under the Non-Emergency Standard, employers will not need to report non-major outbreaks to local health departments (discussed further below in the notice requirement section), but employers should be mindful that some local health departments may have their own reporting requirements.
• Under the Non-Emergency Standard, employers will be required to report major outbreaks to Cal/OSHA. The ETS does not contain any obligation to report COVID-19 cases to Cal/OSHA unless the cases involve a work-related hospitalization or death, which would then trigger the separate Cal/OSHA reporting requirement for serious injuries/fatalities within eight hours of knowledge.
• Under the Non-Emergency Standard, an outbreak and a major outbreak will end when there is one or fewer new COVID-19 cases detected in the exposed group for a 14-day period. The ETS, on the other hand, restarts the outbreak clock after any new case in the exposed group during a 14-day period.
• Under the Non-Emergency Standard, during a non-major outbreak, employers no longer will need to evaluate whether six-foot physical distancing would be an appropriate measure to prevent further COVID-19 spread.
• Under the Non-Emergency Standard, when ventilation is inadequate to reduce the risk of COVID-19 transmission during an outbreak or major outbreak, employers will be required to use high efficiency particulate air (HEPA) air filtration units in accordance with manufacturers’ recommendations in indoor areas that employees occupy for extended periods.

Notwithstanding the above, other important requirements will remain during outbreaks under the Non-Emergency Standard, such as (1) mandatory masking for everyone in the exposed group during outbreaks; (2) mandatory no-cost weekly testing for exposed employees during non-major outbreaks and twice a week testing for major outbreaks; and (3) evaluating and reviewing COVID-19 procedures to prevent further cases and outbreaks.

Changes to Notice Requirements

The governor signed California Assembly Bill (AB) 2693 in September 2022, which takes effect on January 1, 2023. This bill amends the existing COVID-19 notification requirements found in California Labor Code Section 6409.6.

These changes also are reflected in the Non-Emergency Standard. Specifically:

• As noted above, there will no longer be a requirement to report outbreaks to public health departments, unless the local health department requires reporting.
• Instead of having to provide individual written notices to all exposed employees after learning of a COVID-19 case at the worksite, employers will have a choice between providing individual written notices or posting a notice at the worksite. The posted notification requirements are detailed and must include (1) the date(s) the positive case was at the worksite; (2) the location(s) of the exposures; (3) contact information for employees to receive information on COVID-19 benefits and related leaves; and (4) contact information for employees to receive an employer’s cleaning and disinfection plan. This notice must be in a language the majority of employees understand and must remain posted for at least 15 calendar days. Employers must keep a log of all the dates the notice is posted at each of the employer’s affected worksites.
• Employers must continue to provide individual written notice to employees who have been identified as close contacts.

IIPP and Training

The Non-Emergency Standard will continue to require employers to maintain a written program detailing their COVID-19 procedures in accordance with the Cal/OSHA standards. However, the Non-Emergency Standard will allow employers the option of meeting this requirement by including a section or addendum regarding COVID-19 as part of the employer’s Injury and Illness Prevention Program (IIPP), which is a separate Cal/OSHA requirement (Section 3203) for any employer with 10 or more employees.

The specific requirements for training will not carry over from the ETS into the Non-Emergency Standard. Instead, the Non-Emergency Standard states that employees shall receive training regarding COVID-19 in accordance with the training requirement under Section 3203, the IIPP standard. Thus, employers will be allowed to incorporate their COVID-19 training program into the trainings required under the IIPP standard.

Close Contacts

The “Close Contact” definition in the Non-Emergency Standard will mirror the California Department of Public Health’s (CDPH) definition. Consistent with Cal/OSHA’s more recent approach with the ETS, if the CDPH changes its definition of “Close Contact” then that revised definition automatically will be incorporated into the Non-Emergency Standard. If CDPH removes its “Close Contact” definition altogether, then the definition of “Close Contact” under the Non-Emergency Standard will revert to the language below, which also is the current CDPH definition:

• In indoor spaces of 400,000 or fewer cubic feet per floor (such as homes, clinic waiting rooms, airplanes, etc.), close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period during an infected person's infectious period.
• In large indoor spaces greater than 400,000 cubic feet per floor, close contact is defined as being within six feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person's infectious period.
• Spaces that are separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces.

The definition of “infectious period” under the CDPH is the following:

• For symptomatic infected persons, two days before the infected person had any symptoms (symptom onset date is day 0) through day 10 (if choosing not to retest) after symptoms first appeared and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
• For asymptomatic infected persons, two days before the positive specimen collection date (collection date is day 0) through day 10 (if choosing not to retest) after positive specimen collection date for their first positive COVID-19 test.

Recordkeeping Requirements

The Non-Emergency Standard will remove the requirement that employers maintain records of the steps taken to implement the written COVID-19 Prevention Program. Employers will still be required to keep a record for two years of all COVID-19 cases with the employee's name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of the positive COVID-19 test and/or COVID-19 diagnosis. Any personally identifying information in these records should be kept confidential unless disclosure is legally required.

Ventilation

As in the ETS, the Non-Emergency Standard will continue to impose ventilation requirements. The Non-Emergency Standard’s requirements will be more stringent, mandating that employers improve ventilation in one of three ways: (1) maximize the supply of outside air to the extent feasible (except when outdoor air quality is poor or the weather conditions would cause a hazard, (2) use the highest level of filtration efficiency compatible with the existing mechanical ventilation system or filter circulated air through filters at least as protective as Minimum Efficiency Reporting Value (MERV)-13, or (3) use HEPA filtration units. Employers also are still required to review CDPH’s “Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.”

IMPORTANT REQUIREMENTS FROM ETS THAT WILL REMAIN

Face Coverings

The face covering requirements in the Non-Emergency Standard will be the same as those in the current ETS. Specifically, employers cannot prevent employees from wearing face coverings, including respirators, unless doing so would create a safety hazard. Employers also still will be required to provide respirators to any employee, upon request.

Employees are not required to wear face coverings except in the following three scenarios:

• Employees who test positive for COVID-19 and return to work must wear a face covering in the workplace until 10 days have passed since the date that symptoms began or if the person did not have symptoms, from the date of their first positive COVID-19 test.
• Close contacts must continue to wear face coverings for 10 days after their last known exposure.
• Exposed employees must wear face coverings during outbreaks.

Exclusion of Employees

The Non-Emergency Standard will still require infected employees to be excluded from the workplace based on current CDPH isolation and quarantine requirements and any other local or state health orders. As a reminder, the current CDPH recommendations are as follows:

Positive Cases:

• Employees who test positive for COVID-19 must be excluded from the workplace for at least five days after the start of symptoms or after the date of the first positive test if no symptoms are present.
• Isolation can end and employees may return to the workplace after day 5 if symptoms are not present or are resolving, and a diagnostic specimen (an antigen test being preferred) collected on day 5 or later tests negative.
• If an employee’s test on day 5 (or later) is positive, isolation can end, and the employee may return to the workplace after day 10 if they are fever-free for 24 hours without the use of fever-reducing medications.

Asymptomatic Close Contacts:

• Exposed employees must test within three to five days after their last close contact. Persons infected within the prior 90 days do not need to be tested unless symptoms develop.
• Employees must wear face coverings around others for a total of 10 days after exposure.
• If an exposed employee develops symptoms, they must be excluded pending the results of a test.

No-Cost Testing

The Non-Emergency Standard will still require employers to provide no-cost testing (1) to close contacts exposed at the workplace and (2) to exposed employees during outbreaks. In these situations, (1) employers must provide testing at no cost to the employee and (2) testing must be conducted during the employee’s paid time.

WHAT’S NEXT FOR CALIFORNIA EMPLOYERS?

Cal/OSHA has made clear its desire to adopt a Non-Emergency Standard since essentially the beginning of the pandemic. Now that Cal/OSHA has approved the Non-Emergency Standard, Cal/OSHA is likely to also dedicate resources toward enforcement. On that front, as with past COVID-19 requirements, Cal/OSHA is expected to release a set of FAQs within a few days after the Non-Emergency Standard’s effective date, or possibly even before, to help employers understand their obligations.

Likewise, Cal/OSHA may allow enforcement discretion for a time period after the Non-Emergency Standard takes effect to permit employers a genuine opportunity to come into compliance. As with the ETS, Cal/OSHA is likely to condition any enforcement discretion on an employer’s good faith effort to comply. For these reasons, and as this standard will be effective for at least two years, employers should begin developing a compliance plan, which will include a new or updated written COVID-19 policy consistent with the Non-Emergency Standard’s requirements, as well as effective communication with and training for employees.

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