California to adopt new COVID-19 prevention rules

We want to let you know that the California Division of Occupational Safety and Health (Cal/OSHA) has approved COVID-19 Prevention Non-Emergency Regulations (NER) to replace Emergency Temporary Standards (ETS).  On Feb. 3, 2023, the Office of Administrative Law (OAL) approved the new COVID-19 prevention regulations, which means that these new regulations are in effect as of Feb. 3, 2023, and will remain in effect for the next two years.

The details:

The NER includes some of the same requirements found in the ETS as well as new provisions.

Key changes:

Here are some of the key changes contained in the NER:

• Employers are no longer required to maintain a stand-alone 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.
  
  
• The regulations do not require employers to pay employees while they are excluded from work because of COVID-19. Instead, the regulations require employers to provide employees with information regarding COVID-19-related benefits that they may be entitled to under federal, state or local laws; their employer’s leave policies; or leave guaranteed by contract.
  
  
• Employers are no longer required to make testing available at no cost/during paid time to employees who have COVID-19 symptoms but didn’t have close contact in the workplace.
  
  
• Instead of having specific training requirements, the NER merely states that employers must provide effective COVID-19 hazard prevention training to employees during their IIPP training.
  
  
• “Close contact” is now defined by looking at the size of the workplace in which the exposure takes place. For indoor air spaces of 400,000 or fewer cubic feet, “close contact” is now defined as sharing the same indoor air space 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. 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 regulations use the definition of “infectious period” found in the most recent California Department of Public Health (CDPH) State Public Health Officer Order.
  
  
• The regulations give more options for employers to provide notice to close contacts.
  
  
• Instead of zero new cases, employers may exit from outbreak protocol when there is one or no new COVID-19 cases within a 14-day period.

Cal/OSHA is updating its resources to assist employers with understanding their obligations required by the NER.

Key carryover provisions:

Here are some of the key requirements found in both the ETS and NER:

• Employers must provide face coverings and ensure they are worn by employees when CDPH requires their use.
  
  
• Employers must review CDPH Guidance on the Use of Face Masks to learn when employees must wear face coverings.   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 must review CDPH and Cal/OSHA guidance regarding ventilation, including CDPH and Cal/OSHA Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments. Employers must also develop, implement and maintain effective methods to prevent COVID-19 transmission by improving ventilation.

Next steps:

• Read the NER in full.
• FAQs and an updated model COVID-19 Program are available on the Cal/OSHA website.
• Review and amend policies and procedures to ensure they reflect the new rules.
• Train supervisors on the upcoming changes.