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February 2023: Reminder: Cal/OSHA COVID-19 Prevention Non-Emergency Regulations Have Taken Effect

15 Feb

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Update Applicable to:
All employers in the state of California.

What happened?
In a previous communication, we notified you that the Occupational Safety and Health Standards Board adopted the COVID-19 Prevention Non-Emergency Regulations. This is a reminder of that communication.

What are the details?
The Cal/OSHA Standards Board voted to adopt the COVID-19 Prevention non-emergency regulations to replace the Emergency Temporary Standard (ETS) on February 3, 2023. The California Office of Administrative Law approved the non-emergency standard.

Though not titled a temporary standard, the non-emergency standard is set to sunset two years from its effective date, except for the recordkeeping requirements, which will expire in three years.

With the approval, Cal/OSHA published a Frequently Asked Question Page (FAQ) and a COVID-19 Model Prevention Program.

The FAQ covers the following:

  • Scope of Coverage
  • COVID-19 Prevention Addressed in the Injury and Illness Prevention Program
  • Determining Measures to Prevent COVID-19 Transmission; Identifying and Correcting COVID-19 Hazards
  • Face Coverings and Personal Protective Equipment
  • Ventilation
  • Vaccines
  • Training
  • Addressing COVID-19 Cases in the Workplace
  • Testing
  • Outbreaks
  • Recordkeeping and Reporting
  • CDPH Isolation and Quarantine

The FAQs provide some useful information as employers pivot from the ETS requirements.

Hybrid/Remote Employees
The non-emergency regulations apply only when employees work or are exposed at work and not when they work from home. The regulations do not apply to employees assigned to telework and who choose to work somewhere other than their home, e.g. a hotel or a rental property, unless arranged by the employer as employer-provided housing. Additionally, these regulations do not apply to employees covered by the Aerosol Transmissible Diseases regulation.

Close Contact Definition
The non-emergency regulations continue to use the revised “close contact” definition set forth by the California Department of Public Health (CDPH) in October 2022.

  1. In indoor spaces of 400,000 or fewer cubic feet per floor, close contact is defined as sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes or more over 24 hours during a COVID-19 case’s infectious period.
  2. In large indoor spaces greater than 400,000 cubic feet per floor, close contact is defined as being within 6 feet of the COVID-19 case for a cumulative total of 15 minutes or more over 24 hours during the COVID-19 case’s infectious period.
  3. Offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces separated by floor-to-ceiling walls are indoor airspaces.

The FAQs also provide a formula for determining the cubic feet of an indoor space.

Face Coverings and Personal Protective Equipment

Under non-emergency regulations, employers must provide face coverings and ensure they are worn when required by CDPH.

Additionally, all employers must provide and ensure face coverings are worn during outbreaks at the workplace, as well as ensure the use of face coverings when employees return to work after having COVID-19 or after close contact.

Testing Requirements
Under the non-emergency regulation, employers must offer testing at no cost and during paid time:

  • To employees who had close contact at work, except for symptom-free employees who recently recovered from COVID-19.
  • During an outbreak, to all employees within an exposed group, at least once a week, except for employees who were not at work during the relevant period and symptom-free employees who recently recovered from COVID-19.
  • During a major outbreak, twice per week, except for employees who were not at work during the relevant period and symptom-free employees who recently recovered from COVID-19 (returned cases).

Benefits to Excluded Workers
The non-emergency regulation no longer includes an exclusion pay requirement. Though the Standards Board discussed holding a vote to amend the regulations to include exclusion pay in December, that has not proceeded to date and was not indicated for the Board’s upcoming meeting on February 16th. The FAQs indicate that employees who test positive may be eligible for other benefits such as state disability.

For more information, please see the links below:

COVID-19 Prevention Non-Emergency Regulations

COVID-19 Model Prevention Program

Previous Vensure Communication (December 28, 2022)

Article 1Article 2

What do employers need to do?
Employers should review the links provided above and revise their COVID-19 Prevention policies if needed to comply with the law.

Need help understanding how changes to employment laws will affect your business?

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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