Key Takeaways:
- On September 29, Governor Gavin Newsom signed AB 2693 into law, extending and modifying the statutory COVID-19 notice requirements codified in California Labor Code § 6409.6.
- On Oct. 15, the California Occupational Safety and Health Administration (Cal/OSHA) published its latest revised proposal for a new “permanent” COVID-19 prevention regulation, which is widely expected to be adopted ahead of the new year.
- The new rules largely track with existing law while eliminating and reducing some of the expensive requirements for employers.
- COVID-19 regulations are here to stay for the foreseeable future, and California employers will need to remain vigilant in complying with these new COVID-19 regulations and enforce them in the workplace.
Over the past few months, California lawmakers and regulators have considered several significant changes to California’s COVID-19 workplace requirements for 2023 and beyond. On Sept. 29, Governor Gavin Newsom signed AB 2693 into law, extending and modifying the statutory COVID-19 notice requirements codified in California Labor Code § 6409.6. On Oct. 15, the California Occupational Safety and Health Administration (Cal/OSHA) published its latest revised proposal for a new “permanent” COVID-19 prevention regulation, which is widely expected to be adopted ahead of the new year.
For weary employers who are exhausted from keeping up with ever-changing COVID-19 regulations, the good news is that the new rules largely track with existing law while eliminating and reducing some of the expensive requirements for employers. The bad news, however, is that COVID-19 regulations are here to stay for the foreseeable future, and California employers will need to remain vigilant in complying with these new COVID-19 regulations and enforce them in the workplace.
Changes to COVID-19 Exposure Notification Requirements
Background: Under the current version of Labor Code § 6409.6, an employer who is notified of a potential exposure to COVID-19 must take specified actions within one business day, including providing direct written notice to all employees on the premises at the same worksite of the potential exposure and providing information about available benefits and the employer’s cleaning and disinfection plan. Employers are also required to notify the local health department when they are aware of a sufficient number of COVID-19 cases that meet the California Department of Public Health’s (CDPH) definition of an “outbreak.”
Beginning on Jan. 1, 2023:
- Written Exposure Notice May Be Posted at the Worksite. Employers will have a new option to meet the exposure notice requirements by posting a notice of potential exposure at the worksite or on an employee portal for 15 days. Employers must still provide a written notice to the exclusive representative, if any, of any employees or workers with confirmed COVID-19 cases or those who had close contact with a person with COVID-19. The written notification must still be provided within one business day.
- Content of the Exposure Notice Is Simplified. Employers no longer need to directly notify all employees who may have been exposed. Rather, only the following information must be included:
- Dates on which an employee (or an employee of a subcontracted employer) with a confirmed case of COVID-19 was on the worksite premises within the infectious period.
- Location of the exposure, including the department, floor, building or other area, but the location description need not be so specific that it would allow individuals to be identified.
- Contact information for where employees may receive information regarding COVID-19-related benefits and protections.
- New Three-Year Recordkeeping Requirement. Employers who elect to provide exposure notices by posting will be required to maintain a record of all notices posted and a log of all dates on which each notice was posted for three years.
- Outbreak Reporting Is No Longer Required. Starting Jan. 1, 2023, employers will no longer be required to report COVID-19 “outbreaks” to their local public health agencies.
Proposed Cal/OSHA Permanent COVID-19 Prevention Standard
Background: Since late 2020, Cal/OSHA has been regulating COVID-19 workplace safety standards through its COVID-19 Emergency Temporary Standards (ETS). The current fourth version of the ETS is set to expire by the end of 2022. In October, Cal/OSHA published its latest proposal for a “permanent” COVID-19 Standard (the “Permanent Standard”), which will likely replace the existing ETS come Jan. 1, 2023. If adopted, the Permanent Standard will remain in effect for two years.
Here are the most significant changes that employers should be aware of:
- Elimination of Exclusion Pay: The most notable, and controversial, difference is the absence of exclusion pay in the Permanent Standard. Under the Permanent Standard, employers are no longer required to provide exclusion pay and maintain benefits to employees excluded from the workplace due to exposure to COVID-19 at work. Instead, employers only need to provide information to confirmed cases and close contacts about any COVID-19 benefits available under local and federal law.
- New Definition of “Close Contact” Based on Workplace Size: The Permanent Standard will harmonize its definition of “close contact” with the CDPH’s definition, which has already been effective since Oct. 13, 2022, and distinguishes between two different scenarios based on the cubic footage of the workplace:
- In indoor spaces of 400,000 cubic feet or less, a close contact results from sharing the same indoor space for 15 or more cumulative minutes within 24 hours during the infectious period.
- In indoor spaces of greater than 400,000 cubic feet, a close contact results from being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more within 24 hours during the infectious period.
Notably, each room with floor-to-ceiling walls will make up a distinct indoor space for purposes of this rule. Employees wearing respirators during this time are not close contacts.
- Relaxed Reporting and Recordkeeping Requirements: Under the Permanent Standard, employers still need to keep records of COVID-19 cases and outbreaks, but now for three years instead of two years. However, with the exception of a major outbreak, the Permanent Standard no longer requires employers to report workplace COVID-19 cases and outbreaks to their local public health agencies. Note that local health agencies may still promulgate their own reporting requirements. Employers will also not be required to document the steps taken to implement a separate COVID-19 Prevention Program and may rely on their standard Injury and Illness Prevention Program, which should address employee health and safety policies and procedures related to COVID-19.
- Employer-Provided Testing Required in Limited Settings: Under the Permanent Standard, employers would no longer be required to provide COVID-19 testing to all symptomatic employees or make COVID-19 testing available to employees who are a close contact outside of the workplace. Instead, employers will only be required to provide testing, still at no cost to the employee and during paid time, to employees who are a close contact within the workplace.
- “Relaxed” Exposure Notice Requirement: The Permanent Standard now requires written exposure notice to be given in the manner required by Labor Code § 6409.6 or its successor law. See above for a description of the changes in amended Labor Code § 6409.6.
Effective Period of the Permanent Standard: These are the most significant differences from the currently effective ETS. The Cal/OSHA Standards Board is currently scheduled to vote on the proposed Permanent Standard on Dec. 15, 2022. If the Board approves the proposed Permanent Standard, the Office of Administrative Law will have an additional 30 days to adopt or reject Cal/OSHA’s proposal. Until then, the proposed language in the Permanent Standard may change, and the current ETS will remain in effect.
We are closely monitoring the rapidly developing COVID-19 rules and regulations and will provide updates as appropriate.
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