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On December 15, 2022, the California Occupational Safety and Health Standards Board adopted the COVID-19 Prevention Non-Emergency Regulation, modifying Title 8 of the General Industry Safety Orders. The regulation passed, 6–1, in a near-unanimous vote of the seven-member Standards Board.

The Standards Board previously met on November 17, 2022, following a fifteen-day notice period in which it invited written and oral comments on proposed updates to the text of the regulation. At the December 15, 2022, meeting, members of the public expressed varying views on the proposal, with some urging a “permanent regulation” to extend beyond a sunset date and others opposing the regulation as unnecessary for responsible employers “who are going to do what they can to protect their employees.”

The California Division of Occupational Safety and Health’s (Cal/OSHA) current emergency temporary standards (ETS) are set to expire on December 31, 2022. The new regulation will be effective from January 1, 2023, through December 31, 2024.

Although the new regulation largely extends many of the requirements that are currently in place under the ETS, there were some changes in the final language.

One of the latest changes that many consider to be less burdensome on employers is that the new regulation eliminates exclusion pay requirements for employers. The ETS previously had required employers to “continue and maintain an employee’s earnings, wages, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.” This effectively created a requirement that employers provide sick leave related to COVID-19 that had the potential to be unlimited.

The new regulation eliminates this requirement. However, COVID-19 supplemental paid sick leave has been extended until December 31, 2022.

Further, the new regulation is no longer being hailed as “permanent,” as it now has a date certain for its expiration: December 31, 2024.

Key Takeaways

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

Ogletree Deakins will continue to report on developments with respect to the California Non-Emergency COVID-19 Prevention Regulation and will post updates on the California and Workplace Safety and Health blogs and 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.

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