Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On February 3, 2023, California’s Office of Administrative Law approved Cal/OSHA’s COVID-19 Non-Emergency Regulation (NER). The NER is now the operative COVID-19 regulation for most California employers. Cal/OSHA also released FAQs, which are unpacked below.
Overall, the NER is somewhat less burdensome for employers than the prior Cal/OSHA Emergency Temporary Standard (“3rd Revised ETS”). For example, the NER:
- Does not require employers to provide exclusion pay to employees who are excluded from work due to having COVID-19 or other defined circumstances in the regulation.
- Eliminates an employer’s obligation to provide COVID-19 testing at no cost (and during paid time) for employees who are experiencing COVID-19 symptoms but did not have a close contact in the workplace (except during an “outbreak”).
- Permits employers to exit from outbreak procedures when there is one or no new COVID-19 cases within a 14-day period (as opposed to zero new cases, as required under the 3rd Revised ETS).
- Aligns workplace COVID-19 notifications with the now amended Labor Code section 6409.6.
- Permits employers to address COVID-19 workplace control measures within their existing Injury and Illness Prevention Programs, as opposed to requiring a separate stand-alone COVID-19 Prevention Program with specific elements (more on this below).
Cal/OSHA also issued FAQs, which repeat much of the information contain in previous iterations. Highlights include:
- The FAQs identify eight broad steps that employers must take in accordance with written procedures: (1) Determine measures to prevent COVID-19 transmission and identify and correct COVID-19 hazards; (2) Provide employees with “COVID-19 training”; (3) Investigate and respond to COVID-19 in the workplace, including notifying employees, providing testing to close contacts and excluding employees as required; (4) Require and provide face coverings and respirators as required by the NER; (5) Advise employees that they can wear face coverings at work regardless of vaccination status and that retaliation is illegal; (6) Improve indoor ventilation and filtration; (7) Require respirators during aerosolizing procedures; and (8) Keep records of COVID-19 cases in the workplace and report serious illness and outbreaks to Cal/OSHA and to the local health department when required.
- The FAQs provide no guidance on what constitutes satisfactory “COVID-19 training.” Employers should at the very least cover symptoms; how COVID-19 is transmitted; their safety protocols, including masking and use of respirators; non-retaliation policy; and what to do if employees are COVID-19 positive, a close contact and/or symptomatic.
- The FAQs provide no set period for close contact exclusion, merely providing that employees must test within 3-5 days after their last exposure, mask when around others for 10 days, and “test and stay home” if symptoms develop. Currently, employers will have to develop their own procedures for determining when symptomatic close contacts are allowed to return to work.
Although the NER is generally less prescriptive on how to implement COVID-19 hazard control measures, some employers may want to consider keeping existing controls established under the 3rd Revised ETS. By way of example, symptom screening, a system for communicating, personal protective equipment (PPE), and specific COVID-19 training topics are not explicitly itemized in the COVID-19 NER. Yet, for some employers’ workplaces and operations (e.g., many employees working within close proximity of one another), such control measures may still be necessary to reduce transmission risk. Further, the NER contains a slightly more rigorous provision regarding ventilation, requiring that employers either maximize the supply of outside air, employ the highest level of filtration efficiency compatible with existing mechanical ventilation systems, and/or use HEPA filtration units.
The NER treats COVID-19 as a workplace hazard and employers have the general duty to control the hazard as they would any other hazard under California’s Injury and Illness Prevention Program regulation. This duty includes methods to effectively identify hazards and implement control measures (some of which could be screening or PPE). The California Department of Public Health/local health orders and guidance would need to be considered when deciding what control measures are appropriate. Further, a system for communicating with employees and assessing what PPE is necessary are also required under existing Cal/OSHA regulations. In short, employers may be well served by conducting a risk assessment of COVID-19 in their workplace and reviewing existing regulatory obligations before discontinuing existing control measures.
At time of publication, the new COVID-19 regulations have not been updated on the Department of Industrial Relations website. A copy of the NER regulations as approved by the California Occupational Safety & Health Standards Board is available here.
Employers with California operations covered by the NER should be aware that the new regulation is now in effect until February 3, 2025, and should consider conferring with counsel to navigate their compliance obligations.