COVID-19 Prevention Non-Emergency Regulations Now In Effect

The Office of Administrative Law has finally approved the COVID-19 Prevention Non-Emergency Regulations, which will “permanently” replace the Emergency Temporary Standards (ETS).  The Prevention regulations are enforced by CAL/OSHA and contain a comprehensive list of COVID-19-related requirements for employers to follow.  The new regulations went into effect on February 3, 2023, and are set to expire two years later on February 3, 2025, except the recordkeeping requirements.  Those will remain in place through February 3, 2026.

Below are highlights of the major changes made by the Prevention regulations.

• COVID-19 Prevention Plan:  Employers are no longer required to create and maintain a standalone COVID Prevention Plan or CPP.  Under the new regulations, employers can now address COVID-19 workplace measures in their Injury and Illness Prevention Program (IIPP) so long as it makes clear that COVID-19 is a workplace hazard and includes information regarding how to prevent the spread of COVID-19, employee training regarding COVID-19, and procedures for responding to COVID-19 cases at the workplace.  Employers who wish to keep this information in a separate document may do so long as all of the required information is included.
• Close Contact Definition:  CAL/OSHA’s close contact definition now defers to the California Department of Public Health (CDPH) order, which focuses on the size of the workplace as described below:
  • For 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 a 24-hour period during the COVID-19 case’s infectious period, regardless of the use of face coverings.
  • For indoor spaces of greater than 400,000 cubic feet per floor, close contact is defined as 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, 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.
• Infectious Period Definition:  The regulations also defer to the CDPH for the definition of infectious period.  Currently, the infectious period is defined as follows:
  • For symptomatic infected persons, 2 days before the infected person had any symptoms (symptom onset date is Day 0) through Day 10 (if choosing not to re-test) after symptoms first appeared and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR
  • For asymptomatic infected persons, 2 days before the positive specimen collection date (collection date is Day 0) through Day 10 (if choosing not to re-test) after positive specimen collection date for their first positive COVID-19 test.
• COVID Testing:  Employers must make COVID-19 testing available at no cost and during employees’ paid time, regardless of vaccination status to all employees of the employer who have had close contact in the workplace and who are not returned cases.
• Face Coverings:  Employers are required to ensure employees wear face coverings when required by a CDPH regulation or order.  If an employee is exempt from a mandatory face covering requirement due to medical, disability, or mental health reasons, the employee must wear “an effective nonrestrictive alternative,” if possible.  The permanent standard no longer mandates any sort of testing for these employees if it is not possible for an exempt employee to wear a face covering.
• Ventilation:  Employers are expected to be more proactive in reviewing the air ventilation systems in the workplace.  Under the Prevention regulations, employers must now develop, implement, and maintain effective methods to prevent transmission of COVID-19 including one or more of the following:
  • Maximize as much as possible the quantity of outside air provided, except when the United States Environmental Protection Agency (EPA) 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, for instance from excessive heat or cold.
  • In indoor locations 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.
  • Use High Efficiency Particulate Air (HEPA) filtration units in accordance with manufacturers’ recommendations in indoor areas occupied by employees for extended periods, where ventilation is inadequate to reduce the risk of COVID-19 transmission.
• Outbreaks
  • The rules concerning outbreaks no longer apply once there have been one or fewer cases detected in an exposed group within a 14-day period (instead of no new cases in a 14-day period).
  • Employers experiencing an outbreak are now required to utilize HEPA units upon an outbreak whenever ventilation is inadequate to reduce transmission.
  • Multiple Outbreaks:  Employers are no longer required to notify the local public health department of a multiple outbreak (3 or more COVID-19 cases in a 14-day period).  Testing requirements have also relaxed.  Testing must be provided to exposed employees, but employers are no longer required to test exposed employees on a weekly basis.
  • Major Outbreaks:  Employers must report all major outbreaks (20 or more COVID-19 cases in a 30-day period) to CAL/OSHA.  Testing, face mask rules, and social distancing requirements for major outbreaks remain in place.
• Reporting and Recordkeeping:  Employers must keep a record of COVID-19 cases for 2 years but are no longer required to keep records of close contacts.

Despite rumors to the contrary, exclusion pay did not get included among the new requirements.  This means that employers are no longer expected to maintain an employee’s pay if the employee is excluded from work because COVID-19 was contracted in the workplace.  Employees will now need to use other paid time off or apply for short-term disability or worker’s compensation benefits, as applicable, if they are seeking compensation during an exclusion period.

CAL/OSHA has developed detailed FAQs and an updated model program for your CPP or IIPP that can be found here.

Throughout the pandemic, we have continually monitored the changes in the law and the CAL/OSHA regulations to provide our clients with the most up-to-date information.  Part of that effort has included providing our clients with a COVID-19 Protocol Packet to help them navigate the ever-changing legal requirements related to COVID-19 and understand how the changes impact their business.  If we previously prepared a COVID-19 Protocol Packet for your business, please contact us about an update.  If you are interested in having us prepare a Protocol Packet for your business, please contact us for assistance.

For specific questions about the Prevention regulations or how to handle COVID-19 in your workplace, please reach out to an SMT employment law attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

CAL/OSHA Closes In On Finalizing COVID-19 Non-Emergency Prevention Regulations

On December 15, 2022 the California OSHA Board voted to adopt the Non-Emergency COVID-19 Prevention regulations (previously known as the Emergency Temporary Standards or ETS).  The Prevention regulations will take effect once they are approved by the Office of Administrative Law (OAL), which we expect will occur in January 2023 (the exact date is unknown at this time).  Once approved, they will remain in effect for two years, except for the recordkeeping obligations, which remain in effect for three years.

The Prevention regulations mirror the old ETS in many ways, but there are some significant changes to the employer obligations that are important to know.  A fact sheet outlining the requirements of the Prevention regulations has been posted on the Department of Industrial Relations website and can be found here.  The Department is also working on a list of Frequently Asked Questions to assist employers in understanding their obligations under the Prevention regulations.  One item of note is that the Prevention regulations no longer include a requirement for employers to pay employees who are excluded from work because of work-related COVID-19 reasons.  However, it appears this may change in January after the Board reviews a proposal that is currently being drafted in support of the requirement.

We are closely following the developments of the Prevention regulations in order to provide our clients with the most up-to-date advice.  Once they are final, we will also update our COVID-19 protocol and notification packet.  If you have questions about the Prevention regulations, reach out to an SMT employment law attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Governor Newsom Extends COVID Supplemental Paid Sick Leave (Again) For Employers with More than 25 Employees

The California COVID-19 Supplemental Paid Sick Leave (SPSL) law, originally set to expire on September 30, 2022, has been extended through December 31, 2022.  While the law still only applies to employers with more than 25 employees and does not add any additional SPSL entitlement, it gives employees three more months to use the benefits conferred by the law in early 2022 if they are unable to work (on site or remotely) for specific reasons related to COVID-19.  For a complete discussion of the SPSL hours entitlement and conditions for use, see our February 10, 2022 Employment Law Bulletin.

The new law has two new features.  First, it allows employers to require a COVID-positive employee who tested positive five days after their initial positive test to submit to a second diagnostic test within no less than 24 hours, so long as the employer provides both tests at no cost to the employee.  If the employee refuses to test a second time, the employer may stop paying SPSL benefits.

Second, the law establishes a grant program to assist “qualified small businesses or nonprofits” that are incurring SPSL costs.  Grant recipients may exclude grant allocations from their gross income for state income tax purposes for tax years beginning 2021 through calendar year 2029.  “Qualified small businesses and nonprofits” generally include corporations, limited liability companies, partnerships, limited partnerships and registered nonprofits that provided SPSL during calendar year 2022, so long as they began operating before June 1, 2021 and have 26 to 49 employees.  Grants are not available to sole proprietorships or employers with more than 49 employees.

Please contact an SMT employment law attorney if you have questions about your SPSL obligations or if you need assistance with any other employment law needs.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Minimum Wage Increase Effective January 1, 2023 for ALL Employers

On July 27, 2022, the California Department of Finance issued a letter certifying a 3.5% increase to the state’s minimum wage bringing it to $15.50/hour, effective January 1, 2023.  Unlike in prior years, there will not be a lower minimum wage rate for small employers with 25 or fewer employees.  Instead, the minimum wage will be the same for all employers regardless of size.  This means a $1.50 increase for small employers who had expected a jump from the current rate of $14/hour to $15/hour in 2023, and an unexpected .50 cent increase for large employers (26 or more employees).

In addition, because the exempt salary threshold is tied to the minimum wage rate, it will also be increasing.  For 2023, employers, regardless of size, will be required to pay a minimum salary of $64,480 in order to continue to classify an employee as exempt.  For small employers, this means a significant increase in pay for those currently paying their exempt employees the minimum salary of $58,240.  Large employers paying the minimum salary will also have to implement an increase from the current threshold of $62,400.

It is important to remember that employers must meet both the salary and duties requirements in order to classify an employee as exempt.  Failing to pay the minimum salary can destroy the exemption and lead to misclassification claims even if the employee spends 50% or more of their time performing exempt tasks.  Misclassification claims often involve serious exposure for unpaid overtime and meal and rest break penalties, making audits of your exempt employees’ salaries and job duties a priority for your business.

According to the Department of Finance, the rate increase is intended to help curb the impact of inflation.  Even so, many employers will see the rate increase as a significant challenge.  If you have questions about the rate increase or the consequences of misclassifying an employee as exempt, please reach out to a SMT employment law attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

CAL/OSHA Revises and Adopts Emergency Temporary Standards for a Third Time

On May 6, 2022, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) readopted the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards for the third time (“Revised ETS”).  The Revised ETS will be in effect until December 31, 2022, subject to change only if California Department of Public Health (“CDPH”) guidance changes.  The Revised ETS can be found here.  Cal/OSHA’s FAQs on the Revised ETS can be found here (general FAQs) and here (FAQs specific to the changes).  Terms capitalized in this article are defined in the Revised ETS.

The latest changes reflect the agency’s desire to attain flexibility and consistency with the CDPH.  In an apparent attempt to recognize that the recent COVID-19 variant attacks both vaccinated and unvaccinated individuals, the Revised ETS removes all distinctions based on vaccination status, making the ETS applicable to all employees.  Below is a summary of the major changes that affect employers.

Revised Testing Requirements

Regardless of the employee’s vaccination status, employers must offer testing at no cost and during paid work time to all symptomatic employees and employees with a workplace Close Contact.  However, employers are not required to offer testing to employees who have recently recovered (within 90 days) from COVID-19.

The Revised ETS also now permits the use of self-administered and self-read tests, so long as the employee provides independent verification of the results, such as a time-stamped photograph of the results.

Revised Face Covering Requirements

Face coverings are no longer mandatory indoors for unvaccinated employees.  However, all employees are required to wear masks under the following circumstances:

• If the CDPH issues an order requiring them.  Currently, face coverings are required in the workplaces listed below.  Review CDPH guidance here, as these are subject to change.
  • Emergency shelters
  • Cooling and heating centers
  • Healthcare settings
  • Correctional facilities and detention centers
  • Homeless shelters
  • Long term care settings and adult and senior care facilities
• When the employee has tested positive for COVID-19 and returns to work within ten days of experiencing symptoms or receiving a positive test result; or
• When the employee is part of an Exposed Group during a workplace Outbreak or Major Outbreak.

If an employee requests an N-95 respirator, employers must provide it to the employee free of charge regardless of vaccination status (previously only required for unvaccinated employees).

Revised Physical Distancing Requirements

All physical distancing requirements have been removed unless there is an Outbreak, a Major Outbreak, or an ongoing requirement to assess and prevent the transmission of disease.

Partitions and barriers are no longer necessary to reduce COVID-19 transmission.

Revised Exclusion Requirements

The exclusion of employees from the workplace is now required pursuant to CDPH guidelines. Click here for the current CDPH guidelines to ensure compliance.

Employer-Provided Transportation and Housing Requirements

Employee vaccination status is no longer a differentiating factor in determining what requirements apply for employer-provided housing and transportation; rather, the requirements apply to all employees.

Cleaning and Disinfection Requirements Removed

Cleaning and disinfecting requirements are no longer necessary under the Revised ETS.

Requirements from the Previous ETS That Have Not Changed

The following requirements remain the same under the Revised ETS:

• Establishing, implementing, and maintaining an effective written COVID-19 Prevention Program.
• Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
• Providing notification to public health departments of Outbreaks.
• Providing notification to employees of potential exposure and Close Contacts.
• Offering COVID-19 testing after potential exposures.
• Requirements for responding to COVID-19 cases and Outbreaks.
• Isolation and exclusion pay requirements.
• Basic prevention requirements for employer-provided housing and transportation.

Conclusion

Failure to implement and enforce the Revised ETS in your workplace exposes your business to Cal/OSHA fines, workers’ compensation liability for workplace COVID-19 cases, and employee claims.  If you would like assistance in understanding the Revised ETS, investigating workplace exposures, or developing the required notices to employees, please contact an SMT Employment Attorney.  We are here to help you.

If SMT previously created an ETS-compliant Protocol, Workplace Investigation, and Notice packet for your business, please reach out to us so we can prepare an updated packet that complies with the Revised ETS requirements.  If you haven’t yet received a packet and would like to have one prepared so you will be ready to quickly investigate and notify your employees of a COVID-19 exposure in the workplace, please contact an SMT Employment Attorney.

Kari Brown
Betsey Cunningham

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown