Last week, the Occupational Safety and Health Standards Board adopted the COVID-19 Prevention Non-Emergency Regulations which incorporate some revisions to the current COVID-19 Emergency Temporary Standards. The current standards will remain in effect while the Office of Administrative Law (OAL) reviews the regulations. It is nearly a foregone conclusion that the OAL will approve the regulations so employers should begin updating their COVID-19 Prevention Plans to stay abreast of the recent updates. Once approved, the updated COVID-19 standard will go into effect on January 1, 2023, and will remain in place for two years, until 2025.

The notable changes incorporated into the new standards are summarized below.

• New Close Contact Definition: Where there used to be only one definition of a “close contact” the new regulations update the definition to be contingent on the size of the indoor space.
  • 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 or more over a 24-hour period during the COVID-19 case’s infectious period, regardless of the use of face coverings.
  • 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 during the COVID-19 case’s infectious period, regardless of the use of face coverings.
  • Importantly, offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls are considered distinct indoor spaces.
• Updated “Infectious Period” definition: under the updated standards, the definition of infectious period is less stringent and allows for a shorter time frame based on test results
  • For employees with symptoms, 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 symptom free employees, the infectious period may also end five days after a positive test if a negative test is produced on the fifth day.
• Employers rejoice, no more 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 new regulations eliminate 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.
• Streamlined notice requirements.
  • The current standard 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 updated regulations include similar notice requirements, but change 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 post the notice instead of providing notices in writing.

Cal/OSHA will also be updating its online resources to assist employers with understanding their obligations required by the updated regulations including posting an updated set of FAQs and model prevention program.

While these are the most notable changes, there are several other changes that require revisions to an employer’s COVID-19 Prevention Plan, including the ability to incorporate the Plan into the employer’s IIPP. We suggest reaching out to your employment counsel to assist with any necessary changes.