Seyfarth Synopsis: On Thursday, December 15, 2022, the Occupational Safety and Health Standards Board (“OSHSB”) approved the long-proposed 2-year “permanent” COVID-19 standard. The new standard will take effect in January 2023 after final approval from the Office of Administrative Law, and replace the current Cal/OSHA COVID-19 Emergency Temporary Standard (“ETS”).

It’s The Most Wonderful Time Of The Year

Among other things, the holiday season is a time when generosity is on full display. Across the world, families and friends exchange gifts and engage in other gestures of goodwill. Today, Cal/OSHA gifted California employees a new 2-year “permanent” COVID-19 standard just in time for the holidays.

The new standard will ease some of the regulatory burdens employers contended with under the ETS set to expire at the end of 2022, which we previously covered in detail. Nonetheless, the idea of a permanent COVID-19 standard will, for most employers, be even more undesirable than a lump of coal.

It’s Beginning To Look A Lot Like…What We Expected

We blogged about the proposed permanent standard when it was first posted, with the caveat that the OSHSB could make further changes. Although some administrative adjustments were made, the substance of the new permanent standard has remained the same with no last minute additions or revisions.

As a refresher, here are some major changes from the ETS that every California employer should be aware of.

  • Definition changes. The approved permanent standard makes changes to many of the definitions we have seen in the ETS. Some of the more significant changes include:
    • “Close Contact” – Instead of a single definition for close contact, the permanent standard distinguishes between two scenarios based on workplace size. (Note that this new definition already applies in workplaces covered by the ETS because it was changed by CDPH Order on October 13, 2022).
      • Indoor spaces of 400,000 cubic feet or less: a close contact results from sharing the same indoor space for 15 or more cumulative minutes within 24 hours during the infectious period. Here, six feet of distance does not matter.
      • Indoor spaces of greater than 400,000 cubic feet: a close contact results from being within six feet of a COVID case for a cumulative total of 15 minutes or more within 24 hours during the infectious period.
      • Importantly, each room with floor-to-ceiling walls makes up a distinct indoor space for purposes of this rule. Employees wearing a respirator during this time are not close contacts.
    • “Exposed Group” – The permanent standard makes a few changes here. Most importantly, places where individuals momentarily pass through without congregating, regardless of whether they are wearing a face covering, are not considered for the purpose of determining if a group has been exposed.
      • Under the current ETS, everyone in the space had to wear a face covering, even with respect to momentary exposures, or else they would be considered part of an exposed group.
    • “Infectious Period” – Under the permanent standard, the definition of infectious period is less stringent and allows for a shorter time frame.
      • For symptomatic cases, the infectious period may now end five days (down from 10 days) after the arrival of symptoms if the individual tests negative on that day and has not had a fever for over 24 hours without medication.
      • For asymptomatic cases, the infectious period may also end five days after a positive test if a negative test is produced on the fifth day.
    • “Returned Case” – Instead of a 90-day period following the initial onset of symptoms or positive test, the permanent rules changes this to 30 days, after which time someone who returned to work following a COVID-19 related absence is no longer considered a returned case.
      • This shortened time period means that employers may be required to provide COVID-19 testing to a larger number of employees, as returned cases under the ETS are exempt from the requirement.
  • Exclusion pay. One of the most notable differences between the current ETS and the newly-approved permanent standard is the absence of exclusion pay.
    • Currently, employers must continue and maintain employees’ earnings, seniority, rights, and benefits if they have been excluded from the workplace due to COVID-19 exposure or illness contracted at work. Employers have to provide exclusion pay under the ETS before requiring employees to exhaust other forms of potential paid leave, like Supplemental Paid Sick Leave.
    • The permanent standard eliminates this provision. Instead, employers must only provide information to confirmed cases and close contacts about COVID-19 benefits they may be entitled to under local and federal law.
  • Notice requirements. The notice requirements have also been somewhat streamlined.
    • The ETS requires employers to provide written notice to all employees present at a worksite during the infectious period of a COVID-19 case within one business day of when they learn of the case. Notice must also be sent to independent contractors and other employers whose employees were on the premises during this period.
    • The permanent standard includes similar notice requirements, but changes the time frame for notice to “as soon as possible,” so long as the employer is able to meet any potential exclusion requirements. It also defers to Labor Code 6409.6 for the content and form of notice, which means employers would be allowed to do posting instead of providing notices in writing, in light of recent amendments mentioned above.
  • Reporting and recordkeeping. Reporting and recordkeeping requirements have changed to reflect increasing priorities on cases and large outbreaks, rather than exposures or isolated cases.
    • Employers will no longer have to report information about workplace COVID-19 cases and outbreaks to their local health department. (Though employers need to be aware that local health departments may still promulgate their own requirements on reporting.)
    • Additionally, while employers must keep a record of COVID-19 cases for two years, they no longer have to keep records of close contacts.
    • The requirement that employers document the steps taken to implement a separate COVID-19 Prevention Program has also dropped away, meaning employers can generally rely on their standard Injury and Illness Prevention Program (IIPP), as long as the IIPP adequately addresses employee health and safety policies and procedures related to COVID-19.
    • The non-emergency standard adds that in a major outbreak setting, employers must report the outbreak to Cal/OSHA. The proposed rule does not specify a time frame within which the report must be made.
  • Face coverings. In many ways, the rules remain the same. There are, however, some important distinctions:
    • Under both the current ETS and soon-to-be-in-effect standards, employees who are exempted from a mandatory face covering requirement due to medical, disability, or mental health reasons must wear “an effective nonrestrictive alternative” if possible. But, if a face covering is not possible, the permanent standard no longer mandates any sort of testing for these employees.
    • Employers are required to ensure employees wear face coverings when required by a CDPH regulation or order.
  • Outbreaks. Currently, the ETS outbreak rules come in play once three or more COVID-19 cases in an exposed group visit a work site during their infectious period within a 14-day window, and last until there are no new cases detected in a 14-day period. The permanent standard contains various key changes to these rules. Most notably:
    • The provisions concerning outbreaks no longer apply once there have been one or fewer cases detected in an exposed group within a 14-day period. This change may slightly decrease the amount of time that an employer has to follow the more stringent procedures in the event of an outbreak.
    • Currently, during an outbreak employers must evaluate whether HEPA or other filtration units would reduce the risk of transmission. The permanent standard will require employers to utilize HEPA units upon an outbreak whenever ventilation is inadequate to reduce transmission.
    • Provisions on major outbreaks still apply when there are more than 20 cases detected in a 14-day period, and employers need to comply with those provisions as long as there is more than one case detected in the exposed group within a 14 day period.
    • Finally, and very importantly, during a major outbreak, employers will be required to report the outbreak to the Division. This is not a requirement under the current emergency standard.
  • Return to work criteria. The criteria for when a COVID-19 case may return to work is largely the same, but under the non-emergency rule, there is no difference in the standard for those whose symptoms, other than a fever, remain. Thus, under the permanent standard, the continued presence of symptoms is irrelevant if on the fifth day a negative test is produced, unless one of the symptoms is a fever.
  • Ventilation. Currently, employers are required to evaluate how existing ventilation systems may be modified to maximize ventilation with outdoor air. The permanent rule eliminates this language.
    • Instead, the non-emergency standard obligates employers to “develop, implement, and maintain” a prevention plan that incorporates at least one of the following:
      • Maximizing outdoor air when ambient conditions do not pose a hazard.
      • Filtering circulated air through a MERV-13 filter or as much filtration as the existing ventilation system will permit.
      • Using HEPA filtration units in indoor spaces when ventilation is inadequate.
  • Employer-provided housing. Unlike the ETS, the permanent standard will not require employers to prioritize housing assignments in a particular order. Instead, it merely directs employers to consider distinct cohorts in housing assignments.
  • Employer-provided transportation. Many of the requirements of the ETS pertaining to transportation have been dropped. In their place, the new standard instructs employers to comply with the general provisions applicable to workplaces.

Do You Hear What I Hear?

Employers should be aware that, even though exclusion pay was omitted from the non-emergency standard, Cal/OSHA is apparently intent on including it in a likely upcoming general infectious diseases standard. The standard is currently being drafted internally, and it was confirmed in the Board meeting on December 15, 2022 that the current draft includes exclusion pay for employees kept from the workplace due to COVID-19 infection.

A formal motion to include exclusion pay in the general standard will be made at the next Board meeting.

For Auld Lang Syne, Employers Update Your Policies For 2023

The permanent COVID-19 standard will go into effect in January 2023, and will remain in place for two years, until 2025.

Workplace Solutions

Although the permanent standard may be enough to turn one into a Grinch, employers should be prepared to continue complying with California COVID-19 laws for at least a few more years. Fortunately, Seyfarth can help keep things merry. Your favorite Seyfarth attorneys are here to help make sense of things, and will even do so with good cheer.