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On December 15, 2022, the California Occupational Safety and Health Standards Board (Cal/OSHA Board) voted to adopt the Non-Emergency COVID-19 Prevention Regulations. The Office of Administrative Law (OAL) has 30 working days to review and approve the new regulations. If approved, the permanent regulations would go into effect at the beginning of February 2023 and remain in effect for two years. Until OAL approval is granted, the COVID-19 Prevention Emergency Temporary Standards (ETS) will remain in effect. Below is a summary of the permanent regulations.

Removed Requirements for Employers

While the permanent standard is similar to the ETS in many ways, some requirements have been removed. For example, employers are no longer required to provide the following:

• Written policy for cleaning or disinfecting – There are no express requirements for a policy for handwashing procedures or cleaning/disinfecting procedures.

• Standalone COVID-19 Prevention Plan (CPP) – While no separate CPP is required, employers would still be required to address the workplace hazard of COVID-19 through its Injury and Illness Prevention Plan (IIPP) or a separate addendum to address COVID-19 procedures.

• Reporting of COVID cases to local public health departments – Employers are no longer required to report COVID-19 cases and outbreaks to local public health departments, unless those local departments otherwise require it. However, now employers are required to report major outbreaks to Cal/OSHA.

• Exclusion pay – Employers are no longer required to pay exclusion pay to employees excluded from the workplace due to a close contact with COVID-19.

• Daily Screening – Employers are no longer required to conduct daily screening of employees for symptoms of COVID-19.

• Employer-provided transportation restrictions – Most of the specific requirements related to employees in employer transportation have been removed, now requiring only that the general regulations of the permanent standard apply within vehicles.

An additional requirement removed from the permanent standard was the employer’s duty to notify employees and contractors of potential exposure within one day. Instead, notice must be given “as soon as possible.” However, employers are still obligated under California Labor Code section 6409.6 to provide written notice of potential exposure within one business day. Effective January 1, 2023, this may be accomplished through workplace or electronic posting, such as on an employee portal, rather than individualized notice to employees. The notice must be in English and the language understood by the majority of employees and must remain posted for 15 calendar days.

New or Updated Requirements

Additionally, the permanent standard has some new or updated requirements. Under the ETS, employers were required to report information about COVID-19 cases or outbreaks to local public health departments. This requirement has been removed from the permanent standard, replaced by a new requirement that employers report only “major outbreaks.” However, local public health departments may still require this information from employers.

The permanent standard also requires employers to use HEPA air filters in indoor areas occupied by employees for extended periods where ventilation is inadequate to reduce the risk of transmission. The previous ETS only required employers to evaluate whether to use HEPA filters.

Changes to outbreak protocols now require employers to make immediate testing available to the exposed group, and weekly thereafter, until there is “one or fewer” new COVID cases in the exposed group during a 14-day period. Previously, the ETS required the protocols to be followed until there were no new cases in a 14-day period. For a major outbreak, testing is required immediately and then twice weekly for the exposed group. Additionally, employers are required to report a major outbreak to Cal/OSHA.

Training for employees on COVID-19 protocols is still required. However, now it is required in accordance with the IIPP regulations. The IIPP regulations require that training be provided when the program is first established, to new employees or employees with new job assignments, and whenever new procedures or equipment are introduced. Therefore, when employers adopt the COVID-19 protocols required under the permanent standard, training must be provided to all employees on the new procedures for COVID-19 under the IIPP.

Continuing Requirements

Finally, the permanent standard maintains many of the requirements of the latest version of the ETS. The permanent standard is expressly incorporating by reference the most recent guidelines of the California Department of Public Health (CDPH). For example, the permanent standard does not itself require masking for employees but requires workplaces to follow the most current CDPH guidelines regarding face coverings. The standard also follows CDPH guidance regarding employee exclusion from the workplace and return-to-work requirements. Also, like the ETS, the permanent standard defers to CDPH for the many definitions of “close contact,” “infectious period,” and “returned case.”

If you have any questions about the permanent standard or your organization’s obligations under the current ETS, please contact our California Legal Services team at CAinfo@employerscouncil.org.