California COVID-19 safety rules are here to stay.
The California Occupational Safety and Health Standards Board voted on Dec. 15, 2022 to enact a new COVID-19 prevention regulation that imposes a number of familiar workplace safety requirements on California employers. The regulations will become effective in mid-January 2023 after a 30-day review period and remain in effect for at least two years
Since 2020, the California Division of Occupational Safety and Health (CalOSHA) has implemented a series of emergency temporary standards (ETS) to regulate COVID-19 at the workplace. By nature, ETS's are intended to be temporary and expire after six months. Gov. Gavin Newsom has continued to extend various iterations of the California ETS since November 2020, but the last ETS will expire at the end of 2022 per executive order.
To fill the gap left by the expiration of the ETS, the Standards Board passed a non-emergency regulation. It is a general safety order, like other, more traditional CalOSHA standards, and can stay in place indefinitely. However, by its terms, the new COVID-19 standard is set to sunset two years after its effective date, except for the recordkeeping portions, which expire after three years.
Most of the requirements of the new COVID-19 standard are familiar to California employers because they are similar to the requirements of the ETS. The regulation governs:
- Exclusion of COVID-19 cases from the workplace and return-to-work requirements.
- Providing notice of potential COVID-19 exposures and access to free testing to identified close contacts.
- Implementation of workplace safeguards to prevent the spread of COVID-19, including ventilation enhancements and policies to encourage sick employees to stay home.
- Training of employees on COVID-19 hazards and the requirements of the regulation.
- Additional safety protocols required for outbreaks (3+ cases in 14 days) and major outbreaks (20+ cases in 30 days).
- Maintaining records for COVID-19 cases among employees.
The regulation does not require employers to provide any paid leave to employees excluded from work based on a positive COVID-19 test or close contact. It also eliminates any explicit requirements for employers to actively screen employees for COVID-19 symptoms.
California employers that already took steps to comply with the ETS should maintain most of their existing COVID-19 policies. The new regulation is generally less stringent than the ETS, so existing policies should meet the requirements of the regulation if they are consistent with California Department of Public Health guidance.
Susan F. Wiltsie is an attorney with Hunton Andrews Kurth in Washington, D.C. Reilly C. Moore is an attorney with Hunton Andrews Kurth in Richmond, Va. © 2022 Hunton Andrews Kurth. All rights reserved. Reprinted with permission via Lexology.
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