As we begin the new year, California employers must continue to follow the various COVID-19 related regulations and laws that remain in effect, or which will take effect and apply to the workplace in 2023.
Cal-OSHA Issues New Permanent COVID-19 Standard
Overview of the new Non-Emergency COVID-19 Regulation
- “Infectious period”: This has been reduced from 10 days since symptoms appeared, to either 10 days since symptoms appeared or 5 days with a negative COVID-19 test. Both options also require 24 hours without a fever or the use of fever reducing medications.
- Exclusion from Work Pay: Employers are no longer required to maintain wages or provide specific rights or benefits to an employee excluded from work due to COVID-19. The Permanent Standard requires only that employers provide employees with information regarding (1) COVID-19 related benefits they may be entitled to under federal, state, or local laws, (2) the employer’s leave policies, or (3) any leave guaranteed by contract.
- Employee Screening: Employers are no longer required to develop and implement a process for screening employees for COVID-19 symptoms (such as a temperature check or symptom questionnaire). The Permanent Standard provides that employers must:
- Effectively identify and respond to persons with COVID-19 symptoms at the workplace and
- Encourage employees to report COVID-19 symptoms and to stay home when they are ill.
- COVID-19 Prevention Plan: The workplace COVID-19 procedures can now be addressed in either an employer’s Injury and Illness Prevention Plan (“IIPP”) or a separate COVID-19 Prevention Program (“CPP”). Employers should note that although certain requirements under the ETS, including performing a COVID-19 hazard assessment, providing COVID-19 training, investigating workplace exposures, and taking corrective action, are not expressly required under the Permanent Standard, they are still required pursuant to Cal/OSHA’s IIPP regulation.
- Employer Provided Testing: Employers are no longer required to make COVID-19 testing available to employees who have COVID-19 symptoms.
- “Close Contact”: The new Non-Emergency COVID-19 Regulation will use the California Department of Public Health’s (CDPH) definition of “close contact,” which is currently defined as sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes over a 24-hour period during the COVID-19 case’s infectious period if the space is under 400,000 cubic feet or being within 6 feet within that same period if the indoor airspace is greater than 400,000 cubic feet.
- Outbreak Protocol: Outbreak protocols can now cease if there have been one or fewer cases in the exposed group within the preceding 14 days. Employers must now report major outbreaks (20 or more cases over a 30-day period) to Cal/OSHA, which is likely to result in a subsequent Cal/OSHA investigation.
- Notifications To Employees: Notice to employees who were potentially exposed in the workplace must be provided “as soon as possible” detailing the form and content of the notice (see below). In addition, the Permanent Standard 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, “as soon as possible,” and in no case longer than the time required to meet the exclusion requirements under the Permanent Standard.
- Ventilation requirements: This is one of the topics that has become slightly more burdensome. For indoor workplaces, employers must maximize the supply of outside air, employ the highest level of filtration efficiency compatible with existing mechanical ventilation systems, and/or use High Efficiency Particulate Air (HEPA) filtration units.
Changes to Employee Notification and Reporting Requirements
Assembly Bill (“AB”) 2693, signed by the Governor in September, amends the COVID-19 notification and reporting requirements which are now less burdensome and eliminates the requirement that employers notify the local public health agency within 48 hours of an outbreak. These changes are effective January 1, 2023, and will expire on January 1, 2024.
Although employers separately may be required by local public health agencies to report an outbreak, there will no longer be a mandatory statewide outbreak reporting requirement. Currently, employers must provide within one business day a written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the “qualifying individual” within the infectious period that they may have been exposed to COVID-19.
Starting January 1, 2023, employers will have the alternative option of posting a notice of a potential COVID-19 exposure in the workplace as opposed to providing all employees a written notice. If the employer chooses to use a posted notice, it must be posted in all places where notices to employees concerning workplace rules or regulations are customarily posted, including any existing online employee portal, and must contain the following information:
- The date that the confirmed COVID-19 case was last at the worksite.
- The location of the potential exposures including the department, floor, building, or other area.
- Contact information where employees can find resources on COVID-19-related benefits that the employee may be entitled.
- Contact information where employees can find resources related to the employer’s plan for cleaning and disinfecting. Notably, the ETS and Permanent Standard no longer require workplace cleaning and disinfection protocols, so employers can refer to their general cleaning and/or disinfection protocols.
The notice must (1) be posted within one business day from when the employer receives notice of potential exposure, (2) remain posted for no less than 15 calendar days, and (3) be displayed in English and any other language spoken by the majority of employees.Employers should note that the requirement to post within one business day is stricter than the Permanent Standard’s notification requirement listed above and employers who chose to provide notice by posting should therefore adhere to the one-day requirement. Records of the posted notices and a log of the dates when the notices were posted must be maintained for 3 years.
Employers may continue to satisfy the notification requirements by providing a written notice to all potentially exposed employees or employees of subcontracted employers. The written notice can be circulated by, but is not limited to, personal service, email, or text message, and must appear in English and any other language understood by the majority of employees. Although the written notice does not appear to require the specific information outlined above, employers should include the same details required for the posted notice in the written notice and the same record-keeping requirements apply to written notices as well. Employers should ensure they also notify any independent contractors (or their employers) at the worksite of any potential exposure.
Workers’ Compensation COVID-19 Presumption Extended to 2024 (AB 1751)
As the guidance issued by the state, local and federal agencies is regularly changing, as is the medical information known about COVID-19, this memo is provided solely as a reference tool to be used for informational purposes and should not be construed or interpreted as providing legal advice related to any specific case or cases.