For the last two years, California employers have been subject to the careful eye of Cal/OSHA and its COVID-19 Emergency Temporary Standards (or “ETS”). Yesterday, the Standards Board finally voted to adopt a new, “non-emergency” COVID-19 prevention regulation. The text of the proposed regulation can be found here. The Office of Administrative Law has 30 days to review and approve the new regulation; until that time the ETS remains in effect.

The new regulation no longer refers to a separate written “COVID-19 Prevention Plan.” Employers now are required to identify, assess, and respond to COVID-19 hazards as part of their Injury and Illness Prevention Plan (“IIPP”). Gone is the laundry list of prior requirements under the ETS, however employers must now review applicable orders and guidance from the CDPH and local health departments when determining how to protect against COVID-19. Training on how to identify, assess, and respond to COVID-19 hazards is still required, and falls under the training requirements of the IIPP.

The employer still must “immediately exclude” all COVID+ cases from the workplace, and both asymptomatic and symptomatic persons are not allowed to return until after their respective “infectious period” runs. Infectious period is defined in the regulation to match the current CDPH definition, found here. All COVID+ cases are still required to wear a face mask in the workplace until 10 days have passed since either the onset of symptoms, or the date of the first COVID+ test.

Close contacts must be evaluated and assessed per CDPH guidance, and employers must implement effective policies to prevent the spread of COVID-19 by close contacts. The definition of close contacts changes to match the CDPH definition which differentiates between the size of the workplace:

• For indoor spaces <= 400,000 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, as defined in the regulations, regardless of the use of face coverings.  
  • When deciding what qualifies as “same indoor airspace,” 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.
• For indoor spaces > 400,000 cubic feet per floor, a close contact is defined as it originally was, which is 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. 

Additionally, the ETS requirement to provide “exclusion pay” for employees who were removed due to a workplace exposure to COVID-19 is eliminated. Employers must still provide information regarding COVID-19-related benefits, including any benefits available under legally mandated sick leave, workers’ compensation law, local governmental requirements, or the employer’s own leave policies.

Other requirements still remain as they did in the ETS, such as providing testing at no cost and during paid time to employees following a close contact (except for returned cases), and ensuring adequate ventilation to protect against risk of COVID-19 transmission. Employers must still provide face coverings and ensure they are worn by employees when CDPH requires their use, and employees can request respirators from the employer when working indoors and during outbreaks.