The Cal/OSHA Fantastic Voyage Continues...

As we near the end of the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS), Cal/OSHA has promised a new COVID-19 workplace regulation in its place. On December 15, the agency’s Standards Board will be voting to approve a “permanent” regulation that will replace the ETS and be in effect for two years. So what do California employers need to know about this forthcoming permanent regulation? Your first step: Read on for a comprehensive “deep dive” including the top 10 changes you need to know about to prepare. After that: Register for FP’s complimentary webinar on January 4 so you can engage with our firm’s leaders in this area and make sure you are ready.

First Things First: How Long Will This “Permanent” Regulation Be In Effect?

The permanent regulation will be effective upon approval by the Office of Administrative Law (OAL) and filing with the Secretary of State. As we discussed recently here, the exact effective date is a bit uncertain at this point and will depend on how quickly OAL can complete its review. It is possible that the ETS will continue to be in effect for a few weeks into 2023 until the permanent regulation is effective.

Once enshrined, the permanent regulation will be in effect for two years from the effective date. However, employers must maintain specific records for three years after the effective date.

1. As Always, There are Important Definition Changes

The permanent regulation makes a few key changes to terms that employers are used to dealing with in relation to COVID-19. These changes are consistent with recent updates made by the California Department of Public Health (CDPH) and the regulation will continue to defer to future agency definition changes in key areas in the future. Given this flexibility, employers should regularly review the most up-to-date guidance from CDPH for the current definitions for the following terms:

• “Close Contacts” – the permanent regulation incorporates the most recent CPDH definition of close contacts, which now has different standards depending on cubic feet of the work location:
• For indoor spaces of 400,000 or fewer cubic feet per floor, a close contact is anyone sharing the same indoor airspace for 15 minutes or more over a 24-hour period.
• For indoor spaces of greater than 400,000 cubic feet per floor, a close contact is being within six feet of the COVID-19 case for 15 minutes over a 24-hour period.
• The permanent regulation (like the ETS) provides that if CDPH changes the definition of “close contact” in the future by regulation or order, the new definition will apply to the Cal/OSHA regulation automatically.
• “Infectious Period”
  • For COVID-19 cases with symptoms, from two days before the onset of symptoms until 10 days have passed (or five days if the employee tests negative on day five or later) and 24 hours have passed without a fever.
  • For COVID-19 cases without symptoms, from two days before test specimen was collected through 10 days (or through day five if the employee tests negative on day five or later).
• “Returned Case”
  • The permanent regulation changes the previous definition that had been used under the ETS to now only include a 30-day period (rather than a 90-day period) following the onset of symptoms or a positive test.

2. Make Time to Update Your IIPP

The permanent regulation provides that COVID-19 is a workplace hazard and shall be addressed as part of an employer’s required Injury and Illness Prevention Program (IIPP). Employers can choose whether to incorporate their COVID-19 procedures in the written IIPP or maintain a separate document. As many employers know, the most common Cal/OSHA citation is related to the IIPP, so you want to make sure you either update your IIPP or create an addendum that covers the COVID-19 procedures.

3. You Will Need to Train Your Employees