Cal/OSHA Extends COVID-19 Workplace Rules for Two Years

January 19, 2023

In the fall of 2020, as businesses were struggling to follow the latest COVID-19-related agency guidance, the California Division of Occupational Safety and Health (Cal/OSHA) adopted a comprehensive package of COVID-19 rules designed to create a uniform standard for COVID-19 prevention and mitigation in the workplace — the COVID-19 Emergency Temporary Standards (ETS). After more than two years and several revisions and extensions, the ETS was set to expire on December 31, 2022.

In anticipation of the ETS’ expiration, Cal/OSHA began working on a new COVID-19 standard in early 2022. After several meetings with stakeholders and addressing public comments, the Occupational Safety and Health Standards Board (OSHSB) — the standards-setting board within Cal/OSHA — met on December 15, 2022, and voted to adopt a new non-emergency COVID-19 prevention standard. The Office of Administrative Law approved the regulation and it will remain in effect for two years.

Picking up where the ETS left off, the new two-year standard requires employers to maintain certain COVID-19 measures and procedures in the workplace — but it has some notable differences from the ETS, including the removal of exclusion pay and certain reporting requirements.

Read on to find out more about the new two-year COVID-19 prevention standard and how it differs from the ETS.

Injury and Illness Prevention Program and COVID-19

Rather than requiring a highly detailed COVID-19 Prevention Program (CPP) like the ETS, the two-year non-emergency standard requires that employers address COVID-19 as a workplace hazard through their Injury and Illness Prevention Programs (IIPP). Employers may incorporate COVID-19 procedures directly into their IIPP or maintain them in a separate document, which means employers can choose to use their old CPPs if they want, so long as they make some revisions to account for the new changes.  

Whereas the ETS detailed the precise elements and topics employers had to include in their CPP — down to minute details — the new standard streamlines some of the requirements and provides a little more flexibility. Some of the ETS’ detailed requirements were removed and replaced with general rules and considerations for employers when they’re determining measures to prevent COVID-19 transmission, and to identify and correct COVID-19 hazards. 

When employers are developing their COVID-19 procedures, the two-year standard requires that they consider “all persons to be potentially infectious, regardless of symptoms, vaccination status, or negative COVID-19 test results” — referred to in Cal/OSHA’s rulemaking documents as the “universal precaution” provision.  

As employers create and maintain their COVID-19 procedures, they must review all applicable orders and guidance from the state of California (for example, the California Department of Public Health, Cal/OSHA, etc.), as well as the local health departments with jurisdiction over the workplace.

In addition, employers are still required to investigate COVID-19 at the workplace; they must identify when COVID-19 cases are present, including dates of positive test results and/or when symptoms presented (to the extent possible), and identifying and responding to individuals with COVID-19 symptoms in the workplace.  

The standard also provides a short list of COVID-19 prevention controls for employers to consider in creating their COVID-19 procedures, many of which are familiar to employers. These include, for example, remote work, physical distancing, reducing the density of people indoors, moving indoor tasks outdoors, implementing separate shifts and/or break times, and restricting access to the work area. 

The ETS’ detailed training requirements were removed and replaced with a simple directive: for employers to train employees on COVID-19 in accordance with the IIPP training obligations.

Though the new standard is more streamlined than the ETS, it does require employers to follow specific rules with respect to the following:

1. Exclusion from and return to work.
2. COVID-19 testing.
3. Notices, reporting and recordkeeping.
4. Face coverings and respirators.
5. Ventilation requirements.

Many of these COVID-19 workplace rules will be familiar to employers that were operating under the ETS; however, several rules have been modified or eliminated altogether.

Exclusions and Return to Work

Employers must establish policies and procedures to ensure that COVID-19 cases are excluded from the workplace, as they have been doing since 2020. One of the biggest changes in the two-year standard, however, is the removal of the ETS’ exclusion pay obligations.

Employers will recall that, under the ETS, they were generally required to maintain the earnings (at the regular rate of pay) and benefits of employees excluded from the worksite due to COVID-19, often referred to as “exclusion pay.” Though exclusion of COVID-19 cases is still required, exclusion pay is not part of the non-emergency regulation.

Employers must provide excluded workers with information regarding COVID-19-related benefits to which they may be entitled.

The standard doesn’t require employers to exclude close contacts, but, like the last version of the ETS, it directs employers to maintain effective policies to prevent transmission of COVID-19 by individuals who had close contacts, and it requires employers to review current CDPH close contact guidance.

The definition of “close contact” has been updated to the current definition used by the CDPH, but it adds that the definition applies regardless of whether individuals were wearing face coverings. Currently, close contact means the following:

• 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 (for example, three individual five-minute exposures for a total of 15 minutes) during an infected person’s infectious period, regardless of the use of face coverings.
• In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing or food processing facilities), close contact is defined as being within 6 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, 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 shall be considered distinct indoor spaces.

If the CDPH redefines close contact through a public health order or regulation, then the most recent CDPH definition applies. “Infectious period” also has been revised to reflect the current CDPH definition and, like close contact, any changes to the definition by the CDPH will supersede the regulation’s definition.

Excluded employees cannot return to work during their infectious period. 

COVID-19 Testing

Like the ETS, the two-year standard requires employers to make testing available at no cost to close contacts, except for “returned cases,” and to provide them with information on benefits they may be entitled to under applicable federal, state or local laws.

Under the two-year standard, Cal/OSHA narrowed the “returned case” exception to the close contact testing requirement, reducing the time someone is considered a returned case from 90 days down to 30 days, which will impact employers’ close contact testing procedures.

COVID-19 testing also is still required in the event of a COVID-19 outbreak (three or more COVID-19 cases in an exposed group). Like the ETS, testing must be made available immediately at no cost to the employees in an exposed group during employee’s paid time, except for returned cases, and then weekly after that. Employees who had close contacts must have a negative test within three to five days, or must be excluded and follow return to work protocols.

The definition of exposed group remains the same as it was under the ETS — but the exception for employees who momentarily pass through areas without congregating has been broadened to include individuals not wearing face coverings. Previously, places where persons momentarily passed through weren’t considered a “work location, working area, or common area at work” for purposes of the exposed group definition as long as everyone was wearing face coverings. The revision is in step with the reality that face coverings are no longer generally required at this time.

Notably, regarding outbreaks, the two-year standard provides that, once triggered, the outbreak provisions apply until there are “one or fewer” new COVID-19 cases detected in the exposed group for a two-week period (ETS required no new cases for two weeks), making it easier for employers to move out of the outbreak requirements.

Notices, Reporting and Recordkeeping

The two-year standard streamlined the notice and reporting requirements. Now, employers must provide notice to employees and independent contractors, as well as any employer with an employee who had a close contact, “as soon as possible” — but not longer than the time required to ensure that the COVID-19 prevention regulation’s exclusion requirements are met. The standard also directs employers to follow state COVID-19 notice requirements found in Labor Code 6409.6. 

Employers must retain the notices required by the regulation and Labor Code section 6409.6. Additionally, for at least two years, employers must keep a record of and track 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.

Under the non-emergency standard, employers must report only “major” COVID-19 outbreaks (20 or more cases in an exposed group within a 30 day period) to Cal/OSHA.

Employers are no longer required to report COVID-19 cases to their local health departments. However, records of COVID-19 cases must be provided to the local health department, CDPH, Cal/OSHA or the National Institute for Occupational Safety and Health upon request or when otherwise required by law.

Face Coverings and Respirators

The two-year non-emergency standard’s face covering rules are generally the same as the ETS. Employers must provide face coverings and ensure they are worn by employees when required by a CDPH regulation or order. The same ETS exceptions are included for when an employee is alone in a room/vehicle, eating or drinking 6 feet away from others, wearing a respirator, unable to wear a face covering due to medical condition or disability, or during specific tasks that cannot be performed with a face covering.

Like the ETS, the two-year standard requires employees to wear face coverings in certain circumstances. For example, a COVID-19 case that returns to work must wear a face covering until 10 days have passed since the date of symptoms or first positive test. Additionally, in the event of an outbreak (three or more cases in an exposed group), the employees in the exposed group must wear face coverings when indoors, and when outdoors and less than 6 feet from other people.

Upon request, employers must provide respirators for voluntary use to employees working indoors or in vehicles with more than one person. Employers must ensure they provide the right size and that employees are trained on how to properly wear respirators.

Ventilation

The two-year standard is slightly more rigorous than the ETS regarding ventilation. While the ETS required employers to evaluate whether ventilation was adequate and whether certain measures could reduce COVID-19 risks, the two-year standard requires employers to implement one or more of the following ventilation measures:

• Maximize the supply of outside air to the extent feasible, except when the Air Quality Index is greater than 100 for any pollutant or if opening windows or maximizing outdoor air by other means would cause a hazard to employees, such as excessive heat or cold.
• In buildings and structures with mechanical ventilation, filter circulated air through filters at least as protective as Minimum Efficiency Reporting Value (MERV)-13, or the highest level of filtration efficiency compatible with the existing mechanical ventilation system.
• In indoor areas where ventilation isn’t adequate to reduce COVID-19 risk, use High Efficiency Particulate Air (HEPA) filters.

Resources

Employers should review and monitor Cal/OSHA’s COVID-19 Prevention Non-Emergency Regulations resources for the latest information on the new regulations, including FAQs, fact sheets and other resources.

By James W. Ward, J.D.; Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber