On October 14, 2022, Cal/OSHA issued its Notice of Proposed Modifications to its pending draft COVID-19 Workplace Non-Emergency Permanent Regulation governing employee safety for covered workplaces. The final version of this regulation is anticipated to be in place January 1, 2023, replacing the current Emergency Temporary Standard (ETS) when it expires. In a separate action, effective October 14, Cal/OSHA has amended its definition of “close contact” to align with the definition in place by the California Department of Public Health.
COVID-19 Workplace Non-Emergency Permanent Regulation
Cal/OSHA’s modified draft COVID-19 Workplace Non-Emergency Permanent Regulation, showing changes from the prior draft regulation, can be viewed here. CSDA previously joined a coalition letter providing comments on the prior draft regulation.
Although it is called a “permanent standard” many provisions of this standard are expected to be in place for two years, beginning January 1, 2023.
Significant changes between the original draft standard and the modified draft standard include but are not limited to the following:
- Proposed new definition of “close contact” changed from sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, to limit that definition only to indoor spaces of 400,000 or fewer cubic feet per floor. For indoor spaces of greater than 400,000 cubic feet per floor, the standard will be 6 feet/15 cumulative minutes per 24 hours, regardless of face coverings. Offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls shall be considered distinct indoor spaces (e.g., for calculating cubic feet). (Section 3205(b)(1))
- 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)(7))
- 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 link to Cal/OSHA’s webpage addressing the various COVID-19 standards can be found here.
The modified draft language is subject to a public comment period in connection with the rulemaking process.
Interested special districts may submit written comments to Cal/OSHA, relevant to the modified draft regulation, which must be received by 5:00 p.m. October 31, 2022.
Comments may be submitted at the Occupational Safety and Health Standards Board, 2520 Venture Oaks Way, Suite 350, Sacramento, California 95833 or submitted by fax to (916) 274- 5743 or e-mailed to email@example.com. Only comments related to the modification of the text and the additional documents referenced with the notice will be considered. The proposal will be scheduled for adoption at a future business meeting of Cal/OSHA.
Close Contact Definition Updated
The change in the definition of close contacts in the proposed non-emergency regulation follows a definition change included with a recent California Department of Public Health (CDPH) order. Cal/OSHA has updated the definition of “close contact” for purposes of the current COVID-19 Workplace Emergency Temporary Standards (ETS) based upon a floor’s cubic feet indoor airspace size, as discussed below.
Previously, on June 8, 2022, CDPH issued an order which included an update to the definition of “close contact” as follows:
Close Contact is defined as someone sharing the same indoor airspace (e.g., home, clinic waiting room, airplane etc.) for a cumulative total of 15 minutes or more over a 24-hour period (for example, three individual 5-minute exposures for a total of 15 minutes) during an infected person's (laboratory-confirmed or a clinical diagnosis) infectious period.
On October 14, 2022, CDPH issued its order further updating the definition as follows:
- "Close Contact" means the following:
- In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person's (confirmed by COVID-19 test or clinical diagnosis ) infectious period.
- In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person's infectious period.
- Spaces that are separated by floor-to-ceiling walls (e.g., offices, suites, rooms, waiting areas, bathrooms, or break or eating areas that are separated by floor-to-ceiling walls) must be considered distinct indoor airspaces [e.g., for calculating cubic feet].
Effective October 14, 2022, “close contact” under the Cal/OSHA ETS uses the same definition as CDPH. (See Cal/OSHA’s updated FAQs). These changes will also apply by incorporation to the notice requirements under anticipated changes to Labor Code Section 6409.6.
The June 8 and October 14 changes continue to have potentially significant implications for testing, notice, and exclusion under the ETS, especially for employers with larger facilities where employees share the same airspace. Special districts may wish to review and update existing policies. CDPH and Cal/OSHA also updated the definition of “infectious period” as specified.
Look for additional updates in Advocacy News or CSDA eNews.