Cal/OSHA Standards Board’s Draft COVID-19 Prevention Regulation Scheduled to Take Effect January 1, 2023

On May 6, 2022, the State of California Office of Administrative Law (OAL) adopted the third revision of the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 emergency temporary standards (ETS), which is effective through December 31, 2022. On June 16, 2022, the Cal/OSHA Standards Board released its COVID-19 draft regulation, which is scheduled to take effect on January 1, 2023. The pending regulation generally would apply upon approval by OAL for two years after the effective date. The recordkeeping rules would apply for three years after the effective date.

Proposed Definitions

The proposed definitions are as follows:

“‘Exposed group’ means all employees at a work location, working area, or a common area at work, within employer-provided transportation…, or residing within [employer-provided] housing…, where an employee COVID-19 case was present at any time during the infectious period.”

For individuals who test positive for COVID-19 and develop COVID-19–related symptoms, “[i]nfectious period” would be defined to include “from two days before the date of symptom onset” until:

• “ten days have passed after symptoms first appeared, or through day five if testing negative on day five or later”; and
• “twenty-four hours have passed with no fever, without the use of fever-reducing medication, and symptoms have improved.”

For those diagnosed with COVID-19 but who do not develop COVID-19 symptoms, the infectious period is “from two days before the positive specimen collection date through 10 days (or through day five if testing negative on day five or later) after the date on which the specimen for their first positive test for COVID-19 was collected.”

Employers would be required to provide notice of COVID-19 cases to employees only in worksites where an individual with COVID-19 was present. Employers would also be required to report COVID-19 cases to the local health department (if required by law), and maintain records of such cases.

Key Proposed Regulatory Changes

Significant proposed changes follow below:

Workplace hazard

The draft final regulation would define COVID-19 as a workplace hazard. Under Cal/OSHA’s regulations, employers are required to “establish, implement, and maintain an effective Injury and Illness Prevention Program,” which, under the draft final rules, would include having effective methods and/or procedures for responding to a COVID-19 case at the workplace. This requirement would not pertain to COVID-19 outbreaks, which would be subject to separate testing and reporting requirements. (See below.)

Return-to-work exceptions

Cal/OSHA “may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community’s health and safety. In such cases, the employer shall develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation is not feasible, the use of respirators in the workplace.”

Testing

Testing would be required for all employees who had close contacts in the workplace.

Notification

Employers would be required to provide notice to inform employees, independent contractors, and other employers with employees who had a close contact with a COVID-19 case in the workplace.

Face coverings

Employers would be required to provide employees with face coverings when required by a California Department of Public Health (CDPH) regulation or order. When face coverings are required to be worn indoors by regulation or order, “indoors” would include inside employer-owned vehicles.

Respirators

“Whenever an employer makes respirators for voluntary use available, the employer shall encourage their use and shall ensure that employees … are trained how to properly wear the respirator provided; how to perform a user seal check …; and the fact that facial hair interferes with a seal.”

Ventilation

“For indoor workplaces, employers shall review CDPH and [Cal/OSHA] guidance regarding ventilation, including ‘Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.’”

Recordkeeping

Recordkeeping would include the date of the positive COVID-19 test and/or COVID-19 diagnosis. Employers would be required to keep records of persons who had close contact. Employers would be required to retain records “for two years beyond the period in which the record is necessary to meet the requirements” of the draft regulation. Employers would also be required to retain copies of required notices.

Cal/OSHA special action orders

Cal/OSHA “may require an employer to take additional actions to protect employees against COVID-19 hazards through the issuance of an Order to Take Special Action.”

COVID-19 outbreaks

The outbreak and major outbreak sections of the draft rules would apply if there were at least three COVID-19 cases (or at least twenty for major outbreaks) within an exposed group, unless a CDPH “regulation or order defines outbreak using a different number of COVID-19 cases and/or a different time period.”

Key Takeaways

The draft regulation defines COVID-19 as a workplace hazard for which an employer would be required to develop an effective illness prevention program that ensures methods and/or procedures for implementation.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.