On Thursday, December 15, 2022, the Occupational Safety and Health Standards Board adopted the COVID-19 Prevention Non-Emergency Regulation. Earlier in the Fall of 2022, Cal/OSHA issued its Notice of Proposed Modifications to its pending draft COVID-19 Workplace Non-Emergency (permanent) regulation governing COVID-19 safety for covered workplaces. CSDA previously joined coalition letters providing comments on the prior draft regulation and revised regulation.
Special districts should review the entirety of the non-emergency regulation for a complete list of requirements. Significant provisions include but are not limited to the following:
- “Close contact” is defined by size of the workplace:
- For indoor spaces of 400,000 or fewer cubic feet per floor, a ‘close contact’ is defined as sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes over a 24-hour period, regardless the use of face coverings, during the COVID-19 case’s infectious period.
- For indoor spaces of greater than 400,000 cubic feet per floor, a ‘close contact’ is defined as being within six feet of the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period, regardless of the use of face coverings, during the COVID-19 case’s infectious period.
- Distinct indoor spaces are considered as offices, suites, rooms, waiting areas, bathrooms, break or eating areas, or other spaces that are separated by floor-to-ceiling walls.
- With respect to COVID-19 testing, employers are required to make COVID-19 testing available at no cost to employees following a close contact during paid time, except for returned cases.
- For all indoor locations, employers must review California Department of Public Health (CDPH) guidance and implement measures to prevent transmission through ventilation and/or improved filtration.
- Per CDPH, Infectious Period is defined as:
- Two days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5-10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved for symptomatic infected persons or
- Two days before the positive specimen collection date through Date 10 after positive specimen collection date (or through Days 5-10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.
- Employers are required by law to provide and maintain a safe and healthy workplace for employees, including measures to prevent COVID-19 exposure.
- Employers must maintain an Injury and Illness Prevention Program (IIPP) addressing COVID-19 as a workplace hazard and includes measures to improve employee training, prevent workplace transmission, and methods responding to COVID-19 cases at the workplace.
Additional significant changes between the first draft of the non-emergency regulation and the revised adopted version include:
- Face covering requirement eliminated for specific "Exposed Group" exception. (Section 3205(b)(7))
- Returned cases, as defined, are only considered returned cases for 30 days after initial onset of symptoms, instead of 90 days. This limits the applicability of the returned case exception to the no cost testing availability requirement contained elsewhere in the regulation. (Section 3205(b)(11))
- Changes to notice requirements made to account for anticipated changes to Labor Code Section 6409.6. (Section 3205(e))
- Changes to ventilation requirements which appear to make them more prescriptive. (Section 3205(h))
- Changes to reporting and recordkeeping requirements. (Section 3205(j))
- Decreased threshold to emerge from outbreak protocols, and slightly modified requirements for an employer to review its COVID-19 policies, procedures, and controls and implement changes as needed, during outbreaks. (Section 3205.1(a)(2); Section 3205.1(e))
The current ETS text, which will be replaced, can be found here:
A redline showing changes from the Emergency Temporary Standards can be viewed here.
Frequently Asked Questions regarding COVID-19 Emergency Temporary Standards and revisions to the COVID-19 Prevention Emergency Temporary Standards can be found on the Department of Industrial Relation’s Coronavirus/ETS webpage. In addition, fact sheets regarding isolation and quarantine and COVID-19 Model Prevention Program can be found on the website, as well.
The Office of Administrative Law (OAL) will have 30 days to complete its review and, upon approval, the new COVID-19 Prevention Non-Emergency Regulation will remain in effect for two years for most provisions. The Emergency Temporary Standard will remain in effect during the OAL review process.
Importantly, the non-emergency standard does not include a requirement that employers provide exclusion pay, as was required under the ETS. However, there is significant interest from the standards board to reintroduce this requirement in the future. Standards board members are pushing staff to develop an “infectious disease regulation” to take the place of the COVID-19 regulation when it expires in two years, and expressed a desire that exclusion pay should be included in that regulation. Staff confirmed at the December 15 meeting that exclusion pay is included in the draft. CSDA and its coalition partners will continue to monitor this issue.
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