As discussed in our prior alert, Cal/OSHA approved non-emergency standards to regulate employers’ responses to COVID-19.  Since then the standards have been with the Office of Administrative Law (OAL) awaiting approval.  But now the wait is over.  On February 3, 2023, the OAL approved the updated standards.  That means they are now in effect and employers should take steps to ensure compliance. 

What Happens To The Old COVID-19 Standards?

The new non-emergency regulations will take the place of the COVID-19 Emergency Temporary Standards.  The Emergency Temporary Standards will no longer be in effect.

What Are the Biggest Changes From The Emergency Temporary Standards?

Much of the new standards are similar to previous Emergency Temporary Standards. However, there are some distinct changes that employers must become familiar with:

1. 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.
2. 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.
3. 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.
4. Streamlined notice requirements. 
   • The current standard requires employers to provide written notice to all employees present at a work site 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.

What Should Employers Do Next?

To begin, Employers should familiarize themselves with the new standards.  The Department of Industrial Relations has released an updated FAQ document that is a helpful resource for employers tackling the updated standards.  Next, if they haven’t already, employers should update their COVID-19 Prevention Plans to account for the recent changes.  Employers may elect to include their COVID-19 standards in their IIPP as well. Finally, employers should also prepare new notice templates that comply with the reduced notification requirements.

When Should Employers Take These Steps?

The regulation is in effect as of February 3, 2023, so the time is now to get up to speed and make any necessary changes.