On December 15, 2022, the Cal/OSHA Standards Board held its final meeting of 2022 and adopted the COVID-19 Prevention Non-Emergency Regulations. The COVID-19 Emergency Temporary Standards (ETS)will continue to remain in effect while the Office of Administrative Law (OAL) reviews the non-emergency standard.

Once approved by OAL, the non-emergency standard will remain in effect for two years.

Changes from ETS

  • Modified Masking Requirements. Certain mask requirements have been removed from the permanent standard. For example, the definition of an “exposed group” still contains a “momentary pass-through” exception. Previously, this exception required that all individuals be masked to take advantage of this exception.  Now, it has been broadened to include individuals who are not masked. As re-defined, the momentary pass-through exception applies to a place where persons momentarily pass through without congregating.
  • Reduced Reporting Requirements. Employers will no longer be required to report outbreaks to the local health department under the permanent standard. Moreover, a COVID-19 outbreak can be deemed over when “one or fewer” new cases are detected in the exposed group for a 14-day period. An investigation, review, and correction of hazards following an outbreak no longer will be required to be “immediate” following an outbreak.

Continuation from ETS

  • Testing and Notice Requirements Remain. Under the new permanent standard, employers will still be required to provide testing and employee notices after exposure. This is in line with recent legislation extending certain COVID-19 exposure requirements until 2024.
  • Recordkeeping Requirements.  Employers will still be required to maintain records of workers’ infections, but they will not need to maintain records of employees deemed a close contact.
  • Updated Definition of “Close Contact.”  The definition of “close contact,” which is important for purposes of notice, also continues to be linked to the California Department of Public Health definition.

Exclusion Pay

As currently drafted, the new standards do not require employers to provide exclusion pay.  During the December 15th hearing to adopt the new standards, the Standards Board members expressed dissatisfaction with this change.  The Board indicated that it would add exclusion pay to the Board’s January 2023 agenda. Employers will have to wait to see if this provision is added back to the new non-emergency standard.

Jackson Lewis will continue to track COVID-19 regulations and requirements into the endemic phase. If you have questions about the Cal/OSHA COVID-19 Standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.