Employment Law Bulletin | February 6, 2023

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

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Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

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