April 4, 2023

Cal/OSHA COVID-19 Non-Emergency Standard Effective February 3, 2023

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BLACK INK ON WHITE PAPER SERIES

Finally, there appears to be some light at the end of the seemingly endless COVID-19 tunnel. On February 3, 2023, the California Office of Administrative Law (OAL) voted to adopt the Non-Emergency Regulations with some significant changes from the previously adopted Cal/OSHA Emergency Temporary Standards (ETS). Cal/OSHA revised the Non-Emergency Regulations (NER) to mirror the California Department of Public Health (CDPH) various COVID-19 requirements and definitions. The NERs will be in effect until February 3, 2025.

As background, Cal/OSHA originally enacted the ETS back in November 2020. The ETS were revised several times over the last two years, most recently in May 2022. The ETS applied to most California workers who were not otherwise covered by the Aerosol Transmissible Disease standard. The ETS covered employers’ responsibilities for COVID-19 prevention in the workplace and set forth specific guidelines for multiple COVID-19 positive cases in the workforce, along with outbreaks and major outbreak scenarios.

What Changed?

Cal/OSHA changed several items from the previous ETS guidance – much of these changes present a long-awaited change of course for employers. In perhaps the most welcomed modification, the non-emergency standards have removed the exclusion pay requirement. As a reminder, the previous regulations required employers to pay employees when they were excluded from work due to COVID-19. While the NERs removed the requirement to provide exclusion pay, per Assembly Bill 2693, employers must continue providing notice to employees within 1 business day of when the employer was notified of the potential COVID-19 case, and the notices must include information about the date and location of the COVID case, as well as information about applicable benefits to which employees may be entitled.

Masking requirements have also been relaxed in the NERs. Employers are still required to provide masks for employees, including respirators like N95s upon request. However, the “momentary pass through” exception for exposed groups has been expanded to include employees who momentarily passed through a specific location at the worksite without congregating, even if those employees were not masked while momentarily passing through the location of a positive COVID-19 case. Notably, the NERs follow the CDPH’s masking requirements for healthcare settings, long-term care settings, and adult and senior care facilities. However, if CDPH requires indoor masking again, employers are expected to have their staff comply with any CDPH directives.

Testing obligations have similarly been somewhat reduced. Employers must still provide testing at no cost and during working hours to potentially exposed employees with a “close contact” of a confirmed COVID-19 case in the workplace. However, the NERs removed the requirement for employers to provide such testing to all employees who are experiencing symptoms of COVID-19, even if they did not have a close contact at the worksite.

The NERs similarly revised the definition of close contact to mirror CDPH’s definition. For smaller indoor spaces (i.e., those of 400,000 cubic feet or less), close contact is defined as sharing the same airspace as a COVID-19 case for a total of 15 minutes or higher, over a 24-hour period during a COVID case’s infectious period.

Regarding reporting, employers are still required to report serious illnesses to Cal/OSHA and must follow all state and local health department guidance for reporting requirements and guidance in outbreak settings. During outbreaks, employers may cease outbreak procedures where there is only one or fewer new COVID-19 cases in the exposed group a 14-day period.

However, recordkeeping requirements are still very much in effect. As in the ETS, employers are still required to keep records of workers’ infections – this includes the employee’s name, date of infection, contact information, location where the employee worked, and date of the last day at the workplace. Employers should be prepared to provide this information to Cal/OSHA, local health departments, the Department of Public Health immediately upon their request.

What does this mean for my business?      

Employers should look at their Injury and Illness Prevention Plan (IIPP) documents and ensure they have incorporated COVID Prevention Procedures (CPP) into their IIPPs. Cal/OSHA has drafted a model CPP for employers to review and implement within their own IIPP – the link is included here, and MMC clients have received email communication advising them of this development and next steps.      

Employers should also be mindful of the training requirements and ensure their staff is adequately trained against COVID-19 prevention and disinfection procedures and confirm they have adequate masks and PPE to provide to employees when required by CDPH and as requested by their staff. While these permanent standards are less onerous than the ETS, employers should remain vigilant in their compliance obligations dictated by the NER.

As always while Cal/OSHA did issue a comprehensive FAQ on the NERs, MMC is here to assist with any questions not addressed by the FAQ that you may have. Please reach out to MMC at 800-899-6624.