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On June 18, 2022, California’s Division of Occupational Safety and Health (Cal/OSHA) released a draft proposed Permanent Standard that would require covered employers to continue maintaining COVID-19 prevention and safety protocols through 2024. The Permanent Standard would replace the Emergency Temporary Standard (ETS), currently in its third readoption, which expires on December 31, 2022. On September 15, 2022, the California Occupational Safety and Health Standards Board will hold a public hearing to determine whether to adopt, revise, or reject the Permanent Standard.

Like the ETS, the Permanent Standard is designed to create flexibility in the response of employers by expressly incorporating by reference the definitions and guidelines of the California Department of Public Health (CDPH). For example, the Permanent Standard defers to the CDPH for the definitions of “close contact” and “infectious period” and for masking requirements.

Despite the similarities between the ETS and the Permanent Standard, there are some notable differences, some of which may be less onerous for employers:

• Exclusion pay – Employers are no longer required to pay “exclusion pay” to employees who are excluded from the workplace due to COVID-19.

• No standalone CPP – The Permanent Standard would no longer require a specific COVID-19 Prevention Plan (CPP), although employers would still be required to address the workplace hazards of the virus through its Injury and Illness Prevention Plan (IIPP) or in a separate document.

• Handwashing/cleaning – There are no express requirements for handwashing or cleaning/disinfecting procedures.

• Notice requirements – The Permanent Standard removes the obligation that employers notify employees and contractors of potential exposure within one day and instead requires notice to be given “as soon as possible.” However, Labor Code section 6409.6 does require that notice be given within one business day. Although this section expires on January 1, 2023, there is pending legislation that, if passed, would extend Labor Code 6409.6 notice to January 1, 2025.

• Reporting requirements – Employers are still required to maintain records of COVID-19 cases and outbreaks, but the Permanent Standard additionally requires employers to maintain records of close contacts and the date they were provided notice.

The draft Permanent Standard is still subject to revision, especially once the Board hears comments from the public in the upcoming hearing. Covered employers remain subject to the requirements of the current ETS through the end of 2022. If you have any questions about the proposed Permanent Standard or your organization’s obligations under the current ETS, please contact our California Legal Services team at CAinfo@employerscouncil.org.