New COVID-19 prevention regulations for California workplaces will become effective no later than January 14, 2023. The new COVID-19 Non-Emergency Prevention Standards contain significant changes as compared to the current Emergency Temporary Standards, some of which will ease the burden of compliance on employers.
Important features of the new regulatory scheme include the following:
1. The New Regulations Will Remain in Effect for Two Years.
From 2020 until now, Cal/OSHA issued a series of temporary COVID-19 regulations. Each set of temporary regulations differed in substance from earlier versions and remained in effect for short periods of less than four to seven months, a process that required employers to repeatedly change their workplace prevention protocols. The regulations approved by the Cal/OSHA Standards Board last Thursday, however, are non-emergency regulations and will remain in effect for two years. The record-keeping requirements will remain in effect for three years. The fact that the upcoming regulations will be the law for at least two years lessens to a meaningful extent the burden of employers complying with Cal/OSHA COVID-19 prevention requirements.
2. A New Definition of “Close Contact” is Established.
Under the new regulations, determining whether an employee has suffered a “close contact” with a COVID-19 case will turn on the size of the interior space where the COVID-19 case and the employee were present together. In indoor spaces of 400,000 or fewer cubic feet per floor, a close contact is defined as an employee sharing the same indoor airspace as 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. Note that this standard for smaller indoor spaces does not require that the employee be within any minimum distance from the COVID-19 case in order to have had a “close contact.”
In larger interior spaces, an employee must spend time in close proximity to the COVID-19 case in order to suffer a “close contact.” Specifically, in indoor spaces of greater than 400,000 cubic feet per floor, a close contact is defined as an employee 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.
The definition of “close contact” under the new Non-Emergency Cal/OSHA Standards tracks the definition of “close contact” adopted by the California Department of Public Health (CDPH) in early November this year.
“Close contact” is a central term under the new regulations because, in part, employers must notify employees who have a close contact at work; provide free COVID-19 testing, during paid work time, at no cost to employees who have a close contact at work; and exclude employees who have a close contact from the workplace in some circumstances.
The most recent temporary standards from Cal/OSHA defined “close contact” without taking into account the size of the interior space.
3. The New Regulations Impose More Specific Ventilation Requirements.
Each version of Cal/OSHA’s temporary COVID-19 standards required that employers consider to some extent interior ventilation. The current temporary standards direct employers to “maximize the supply of outside air [into the workspace] to the extent feasible,” without any specifics as to how employers were to do so. The new regulations, however, go further and impose specific technical demands.
The new regulations require that employers take one of three actions on ventilation. Employers must:
– Maximize the supply of outside air to the extent feasible (and where feasible);
– 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; or,
– Use High Efficiency Particulate Air (HEPA) filtration units in indoor areas occupied by employees “for extended periods, where ventilation is inadequate.”
Practically speaking, in workplaces where increasing the flow of outside air into the workplace is not feasible — such as many modern office towers, large department stores, “big box” stores, and retail spaces within shopping malls — employers apparently will need to implement the second or third option.
4. Cal/OSHA Aligns its Definition of “Infectious Period” with the CDPH.
In line with the CDPH definition, the new regulations define “infectious period” as follows:
– For COVID-19 cases who develop COVID-19 symptoms, the infectious period is from two days before the date of symptom onset until 10 days after symptoms first appeared, or through day five if testing negative on day five or later; and, 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
– For COVID-19 cases who never develop COVID-19 symptoms, the infectious period is from two days before the date the positive specimen was collected through 10 days (or through day five if testing negative on day five or later) after the date on which the specimen for the first positive test for COVID-19 was collected.
5. Employers are Free from the Exclusion Pay Requirement.
When, under Cal/OSHA’s current temporary standards and earlier versions, employees were excluded from the workplace because they were COVID-19 cases or had a close contact, employers were generally required to continue to pay the employee’s wages and maintain their benefits (“exclusion pay”) until they recovered and were able to return to work. The new Cal/OSHA regulations omit the exclusion pay requirement, a step that will relieve employers from what was a financial and operational burden.
6. The Training Requirement is Simplified.
While the new regulations will continue to require that employers provide employees training concerning COVID-19, the new regulations will not require that such trainings address any of the specific subjects that employers were required to cover in trainings under the temporary standards. The new regulations contain no specific requirements concerning the subjects of the trainings other than that the trainings must be “regarding COVID-19.”
The Office of Administrative Law has 30 days from December 15, 2022, in which to approve the regulations, at which time they will go into effect. Until then, the current Emergency Temporary Standards remain the law. We expect the California Department of Industrial Relations to post Frequently Asked Questions once the new regulations are in effect.
If you have questions or we may assist on this subject, please contact your Fox Rothschild LLP attorney or the author.
This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.