The California Office of Administrative Law has approved the California Division of Occupational Health and Safety’s (Cal/OSHA) COVID-19 Prevention Non-Emergency Regulations (Non-Emergency Regulations). As a result, on February 3, 2023, Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS) expired, and the Non-Emergency Regulations went into effect.
Although extending many of the ETS requirements, as we previously reported, the Non-Emergency Regulations contain some notable changes. A redline comparing the Non-Emergency Regulations to the ETS is available here. Some important changes include:
- Eliminating exclusion pay for employees excluded from the workplace as a result of COVID-19;
- Providing greater flexibility and control over including COVID-19 in required written Injury and Illness Prevention Programs;
- Reducing COVID-19 training and testing obligations;
- Eliminating the requirement to report COVID-19 cases and outbreaks to local health departments unless requested or required to do so by law;
- Adding new ventilation improvement obligations for employers;
- Modifying certain recordkeeping requirements;
- Aligning employer notice obligations with those outlined in California Labor Code § 6409.6 (which, as previously discussed, was amended last year by AB 2693 in several significant ways); and
- Aligning the definition of “close contact” in the Non-Emergency Regulations with that used by the Department of Public Health (including as amended in the future).
Except for recordkeeping requirements, the Non-Emergency Regulations will remain in effect until February 3, 2025. The Non-Emergency Regulations’ recordkeeping requirements will remain effective until February 3, 2026.
To help employers comply with the Non-Emergency Regulations, Cal/OSHA also published new guidance on February 3, including an updated COVID-19 Model Prevention Program and a revised set of Frequently Asked Questions (FAQs), which the agency continues to update. The FAQs are robust and include more than 60 questions and answers covering a range of topics, such as face coverings, testing, training, vaccines, recordkeeping, and reporting.
We are continuing to monitor Cal/OSHA for further guidance. For now, California employers should work with counsel to review and assess what modifications, if any, they should make to existing COVID-19 Prevention Programs and policies in light of the Non-Emergency Regulations.
Alexandria Adkins, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.