New Cal/OSHA COVID-19 nonemergency regulations
Q Have the Cal/OSHA Covid-19 workplace regulations changed again?
A Yes. At the end of 2022, the Cal/OSHA Standards Board voted to adopt the COVID-19 Prevention Non-Emergency Regulations to replace the COVID-19 Emergency Temporary Standards. On Feb. 3, California's Office of Administrative Law approved Cal/OSHA's COVID-19 Non-Emergency Regulations. These new regulations are now the operative COVID-19 regulations for most California employers and will remain in effect until Feb. 3, 2025.
In conjunction with the approval of the Non-Emergency Regulations, Cal/OSHA published a revised Frequently Asked Question Page (FAQ) and a new COVID-19 Model Prevention Program.
Employers should review their COVID-19 Prevention Program and related policies and practices to ensure compliance with the new Non-Emergency regulations. Below are some of the key points employers should be aware of:
Exclusion pay
The Non-Emergency Regulations no longer require employers to pay employees who are excluded from work because of workplace exposure to COVID-19. The FAQs state that employees who test positive may be eligible for other benefits such as state disability or workers' compensation.
Face coverings & testing
Employers must still provide face coverings to employees and ensure they are worn in the workplace when required. Employers must also ensure face coverings are worn during a COVID-19 outbreak or when employees return to work after a close contact.
Employers are required to notify employees of positive COVID-19 cases in the workplace and make COVID-19 testing available at no cost to employees who had a “close contact” in the workplace or during workplace outbreaks. Employers do not need to provide testing at no cost to employees who were exposed to COVID-19 outside of the workplace.
Close contact
The Non-Emergency Regulations use a revised definition of “close contact,” which is based on the size of an employer's indoor space. Different definitions of “close contact” apply to indoor spaces of 400,000 cubic feet or fewer and indoor airspaces of more than 400,000 cubic feet. The new FAQs provide a formula for assisting employers in determining the cubic feet of an indoor space.
Written policy requirements
Employers are no longer required to maintain a separate COVID-19 Prevention Plan but can now incorporate COVID-19 workplace hazard policies in
their Injury and Illness Prevention Plan (“IIPP”). The written COVID-19 Plan must include the following:
· Determine measures to prevent COVID-19 transmission and identify and correct COVID-19 hazards.
· Provide COVID-19 training to employees.
· Investigate and respond to COVID-19 cases in the workplace.
· Exclude from the workplace COVID-19 cases until they are no longer an infection risk and meet return-to-work criteria and implement effective policies to prevent transmission after close contact.
· Require and provide face coverings and respirators in the manner and in the circumstances specified in the COVID-19 Prevention regulations.
· Advise employees they can wear face coverings at work regardless of their vaccination status, and that retaliation by the employer is illegal.
· Improve indoor ventilation and air filtration to prevent COVID-19 transmission.
· Require respiratory protection during aerosolizing procedures.
· Keep records of COVID-19 cases at the workplace.
· Maintain records of COVID-19 cases, and report serious illnesses and outbreaks to Cal/OSHA and to the local health department when required.
Employers should refer to the revised model program prepared by Cal/ OSHA for guidance on updating their COVID-19 policies.
The FAQs and model program can be found at https://www.dir.ca.gov/DOSH/Coronavirus/Covid-19-NE-Reg-FAQs. html#prevention
Sara Boyns is a lawyer with Fenton & Keller in Monterey. This column is intended to answer questions of general interest and should not be construed as legal advice. Email queries to email@ fentonkeller.com.