NEW COVID-19 PREVENTION NON-EMERGENCY REGULATIONS
On December 15, 2022, the Occupational Safety and Health Standards Board voted to adopt non-emergency COVID-19 prevention regulations. These regulations took effect on February 3, 2023 and will remain in effect for two years after the effective date, except for the recordkeeping subsections that will remain in effect for three years.
These regulations include some of the same requirements found in the COVID-19 Prevention Emergency Temporary Standards (ETS), as well as new provisions aimed at making it easier for employers to provide consistent protections to workers and allow for flexibility if changes are made to guidance in the future from the California Department of Public Health.
Notable Provisions
- Employers must provide face coverings and ensure they are worn by employees when CDPH requires their use.
- Employers must review CDPH Guidance for the Use of Face Masks to learn when employees must wear face coverings.
- Note: Employees still have the right to wear face coverings at work and to request respirators from the employer when working indoors and during outbreaks.
- Employers must report information about employee deaths, serious injuries and serious occupational illnesses to Cal/OSHA, consistent with existing regulations.
- Employers must make COVID-19 testing available at no cost and during paid time to employees following a close contact.
- Employers must exclude COVID-19 cases from the workplace until they are no longer an infection risk and implement policies to prevent transmission after close contact.
- Employers are no longer required to maintain a standalone COVID-19 Prevention Plan. Instead, employers must now address COVID-19 as a workplace hazard under the requirements found in section 3203 (Injury and Illness Prevention Program, IIPP), and include their COVID-19 procedures to prevent this health hazard in their written IIPP or in a separate document.
- Employers must do the following:
- Provide effective COVID-19 hazard prevention training to employees.
- Provide face coverings when required by CDPH and provide respirators upon request.
- Identify COVID-19 health hazards and develop methods to prevent transmission in the workplace.
- Investigate and respond to COVID-19 cases and certain employees after close contact.
- Make testing available at no cost to employees, including to all employees in the exposed group during an outbreak or a major outbreak.
- Notify affected employees of COVID-19 cases in the workplace.
- Maintain records of COVID-19 cases and immediately report serious illnesses to Cal/OSHA and to the local health department when required.
- Employers must now report major outbreaks to Cal/OSHA.
- The COVID-19 Prevention regulations do not require employers to pay employees while they are excluded from work. Instead, the regulations require employers to provide employees with information regarding COVID-19 related benefits they may be entitled to under federal, state or local laws; their employer’s leave policies; or leave guaranteed by contract.
- The Permanent Regulation Eliminates Daily Screening
- While employees may have gotten used to confirming that they have no COVID-19 symptoms, the permanent regulation does away with the daily symptom check. Unlike the ETS, the permanent regulation does not require employers to develop and implement a process for screening employees for COVID-19 symptoms. Instead, the permanent regulation does provide that employees shall be encouraged to report COVID-19 symptoms and to stay home when ill.
- The permanent regulation requires employers to notify employees and independent contractors who had a close contact, as well as any employer with an employee who had a close contact. Notice shall be provided “as soon as possible” and in no case longer than the time required to ensure that any exclusion requirements are met.
- Workplace Notice of COVID-19 Cases
- This notice must be posted within one business day and must be posted for at least 15 days. If the employer posts other workplace notices on an existing employee portal, the notice shall be posted on the employee portal. The notice must be in English and the language understood by the majority of employees.
- As an alternative to this workplace notice, an employer may provide individualized written notice. Employers must also continue to provide notice of COVID-19 cases and close contacts to exclusive representatives (labor unions).
- The permanent regulation defers to these statutory notice requirements for the content and form of these notices, meaning employers will have the option of providing a workplace posting or providing individual notice in writing.
- The permanent regulation provisions applicable to outbreaks and major outbreaks are now collapsed into one section. These requirements include making immediate testing available to employees in the exposed group (and weekly thereafter) during an outbreak and mandating required twice weekly testing during a major outbreak. The permanent regulation also makes the following notable changes:
- The outbreak and major outbreak requirements apply until there are “one or fewer” new COVID-19 cases detected in the exposed group for a 14-day period. This is an improvement over the ETS, which applied the outbreak requirements until there were “no” new cases.
- The permanent regulation contains a new reporting requirement that was not contained in the ETS. Specifically, an employer is required to report a major outbreak to Cal/OSHA, but the permanent regulation does not specify a time period for doing so.
- The ETS required employers in an outbreak scenario to merely “evaluate” whether to use HEPA air filters. However, the permanent regulation now specifically requires the employer to use HEPA filters in indoor areas occupied by employees for extended periods, where ventilation is inadequate to reduce the risk of transmission.
- Changes to Employer-Provided Housing: The employer-provided housing provisions of the permanent regulation are largely the same as those previously contained in the ETS. One notable change is that, under the ETS, an employer was required to prioritize housing unit assignments according to specified criteria. The permanent regulation now merely provides that, to the extent feasible, employers shall assign employee housing to cohorts that travel and work together, separate from other workers. To the extent feasible, residents who usually maintain a household together shall be housed in a single housing unit without other persons.
- Many of the Employer-Provided Transportation Requirements Are Removed: Finally, the permanent regulation largely eliminates most of the specific employer-provided transportation requirements and instead merely directs employers to comply with the general regulation requirements within a vehicle. The permanent regulation provides that, to the extent feasible, employers shall assign transportation such that cohorts travel and work together, separate from other households. To the extent feasible, employees who usually maintain a household together shall travel together.
Important changes to definitions
- “Close contact” is now defined by looking at the size of the workplace in which the exposure takes place. For indoor airspaces of 400,000 or fewer cubic feet, “close contact” is now defined as sharing the same indoor airspace with 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. For indoor airspaces of greater than 400,000 cubic feet, “close contact” is defined as being within six feet of 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.
- “Exposed group” was clarified to include employer-provided transportation and employees residing within employer-provided housing that are covered by the COVID-19 Prevention standards.
- 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.
- The permanent regulation (like the ETS) provides that if the CDPH changes the definition of “close contact” in the future by regulation or order, the new definition will apply to the Cal/OSHA regulation automatically.
- “Infectious Period”
- For COVID-19 cases with symptoms, the “infectious period” is measured from two days before the onset of symptoms until 10 days have passed (or five days if the employee tests negative on day five or later) and 24 hours have passed without a fever.
- For COVID-19 cases without symptoms, you’ll measure from two days before the test specimen was collected through 10 days (or through day five if the employee tests negative on day five or later).
- “Returned Case” The permanent regulation changes the ETS definition of “returned case” to now include only a 30-day period (rather than a 90-day period) following the onset of symptoms or a positive test.
Resources
- COVID-19 Prevention Non-Emergency Regulations FAQs CLICK HERE
- To view the General Industry Safety Orders CLICK HERE
- News Release for the COVID-19 Non Emergency Standards CLICK HERE
- Fisher Phillips: The New Cal/Osha COVID-19 Rule Is Now in Effect: A 3-Step Action Plan for California Employers CLICK HERE
- For additional Non-emergency COVID-19 information CLICK HERE
This document is intended to be used as a starting point to help business owners understand the New COVID-19 Prevention Non-emergency Regulations. It is not comprehensive. While everything in this article is intended to be accurate it is not intended legal advice and should not be relied on as such. To obtain legal advice please contact a licensed California attorney. The EDC does not endorse a particular law firm or practice.
|
|
?
?
?
?
?