Cal/OSHA Updates on COVID-19 Prevention Non-emergency Regulations – Exclusion Pay Removed

Sacramento—The COVID-19 Prevention Non-Emergency Regulations requiring employers to protect workers from hazards related to COVID-19 are now in effect, following their approval yesterday by the Office of Administrative Law. The new regulations will remain in effect through February 3, 2025, with recordkeeping requirements in effect through February 3, 2026.

 

Notable provisions include:

  • COVID workplace measures: Employers may address COVID-19 workplace measures within their written Injury and Illness Prevention Program (IIPP) or in a separate document. Employers must maintain an effective written Injury and Illness Prevention Program that addresses COVID-19 as a workplace hazard and includes measures to prevent workplace transmission, employee training, and methods for responding to COVID-19 cases at the workplace. Employers are legally obligated to provide and maintain a safe and healthful workplace for employees, including the prevention of COVID-19 exposure.
    •  In California, all employers are required to establish, implement, and maintain an effective, written Injury and Illness Prevention (IIPP) program that meets the requirements of California Code of Regulations (CCR), Title 8, section 3203. COVID-19 prevention procedures must be addressed either in the written IIPP or maintained in a separate document.
    • Cal/OSHA has developed this model COVID-19 CPP to assist employers that choose to address their written COVID-19 hazard control procedures in a document separate from their IIPP. Employers are not required to use this CPP. Instead, they may create their own or use another CPP template. Click Here to Download the Model COVID-19 CPP
  • Close Contact Definition: Close contact is determined by looking at the size of the workplace, as set forth in the California Department of Public Health (CDPH) State Public Health Officer Order.
  • For indoor spaces of 400,000 or fewer cubic feet per floor, 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 as defined by this section, regardless of the use of face coverings.
  • For indoor spaces of greater than 400,000 cubic feet per floor, 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, as defined by this section, regardless of the use 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.
  • Infectious Period Definition: Infectious period is defined by the California Department of Public Health (CDPH) State Public Health Officer Order.
  • COVID Testing:  Employers must make COVID-19 testing available at no cost and during employees’ paid time, regardless of vaccination status to all employees of the employer who have had close contact in the workplace and who are not returned cases.
  • Ventilation: For indoor locations, employers must review applicable CDPH guidance and implement effective measures to prevent transmission through improved filtration and/or ventilation.

Cal/OSHA is updating its resources to assist employers with understanding their obligations required by the COVID-19 Prevention Regulations. The COVID-19 Prevention Resources webpage contains a fact sheet that describes the regulations, FAQs and an updated model program.

The California Division of Occupational Safety and Health, or Cal/OSHA, is the division within the Department of Industrial Relations that helps protect California’s workers from health and safety hazards on the job in almost every workplace. Cal/OSHA’s Consultation Services Branch provides free and voluntary assistance to employers to improve their worker health and safety programs. Employers should call (800) 963-9424 for assistance from Cal/OSHA Consultation Services.

 


 

Cal/OSHA to Adopt Non-Emergency Covid-19 Standard – Exclusion Pay Removed 

 

The Occupational Safety and Health Standards Board (OSHSB) is pushing forward with a “permanent” regulation to address the spread of COVID-19 at the workplace, as the current COVID-19 Emergency Temporary Standard (ETS) will expire on December 31, 2022. After issuing three iterations of the ETS, the emergency regulation process is no longer a viable option. To continue to have coverage, a standard on the topic must be formally adopted into California Code of Regulations – Title 8.

Because of this, OSHSB is proposing a broad rewrite of the standard stating:

“The Board is proposing new sections 3205 through 3205.3 to provide clear and specific requirements to employers so that they may better protect employees from the harmful effects of COVID-19; avoid a potential increase in COVID-19-related fatalities, serious illnesses, and long-term disabilities; and reduce related financial costs to employees, employers, insurers, public benefit programs, and taxpayers. The proposed regulations will mitigate costs associated with COVID-19-related company shutdowns, employee absences, hospitalizations, death, responding to agency investigations, increased workers’ compensation insurance rates, personnel replacement expenses, and lost production.”

The most controversial provision in the previous iterations of the ETS has been the “exclusion pay” provision which requires employers to pay employees, if they are exposed to COVID-19 at work, to stay home and isolate while they await a positive or negative COVID-19 test. At the November OSHSB meeting the Cal/OSHA’s Division of Occupational Safety and Health staff made it clear that they did not intend to add exclusion pay to the non-emergency version of the COVID-19 standard.

OSHSB will vote on the proposed regulation at its December meeting. We anticipate that the proposed standard will pass as is and take effect January 1, 2023. The standard is not intended to truly be permanent and will sunset after two years.

Summary of the most significant provisions/revisions:

  • The regulation is not permanent as is contains a two-year sunset provision.
  • Exclusion pay has been eliminated.
  • Testing and notification after exposure remains.
  • Records must be maintained for three years.

As this is a broad rewrite, there are many other revisions. For further details please visit the OSHSB website to compare the proposal with the sunsetting ETS.

-Posted December 12, 2022.

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