For almost three years, California employers operated under the COVID-19 Prevention Emergency Temporary Standards that were implemented by Cal/OSHA early in the pandemic, and revised as the pandemic situation evolved. Now, with the decline of the COVID-19 emergency situation, Cal/OSHA has implemented new permanent COVID-19 standards that took effect on February 3, 2023. So what employer obligations remain? Here are some of the highlights (the following is not an exhaustive list):
Exclusion pay requirement ends
There is no longer an obligation for employers to pay employees who were excluded from work. Now, under the permanent standards, employers only need to inform employees who contracted or were close contacts about potential benefits available to them under any other applicable federal, state, or local laws.
- Now, “infectious period” is defined as set forth in the most recent California Department of Public Health (CDPH) State Health Officer Order as:
- For symptomatic infected persons, two days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5 to10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR
- For asymptomatic infected persons, two days before the positive specimen collection date through Day 10 after positive specimen collection date (or through Days 5 to 10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.
- The new definition of “Close Contact” is provided by the California Department of Public Health:
- For indoor spaces of 400,000 or fewer cubic feet per floor, “close contact” is defined as sharing indoor airspaces with “a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, as defined in the regulations, regardless of the use of face coverings.”
- For indoor spaces of greater than 400,000 cubic feet per floor, “close contact” is defined as “being within six feet of the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, as defined in the regulations, regardless of the use of face coverings.”
- Offices, suites, rooms, waiting areas, break or eating areas, bathroom, or other spaces that are separated by floor-to-ceiling walls are considered distinct indoor spaces.
- “Returned Case”- For those individuals who contracted COVID-19 and returned to work in compliance with the correct procedures and thereafter did not develop any COVID-19 symptoms, the prior ETS defined “returned cases” as such for 90 days following the onset of symptoms or a positive test. Now the new standards shorten the time to 30 days.
Employers must make testing available at no cost and during the employee’s paid time, to all employees who had a close contact in the workplace, except for symptom-free returned cases.
Employers no longer need to use a process for screening employees for COVID-19 systems (such as a symptom check or taking temperatures). Now employers need only effectively identify and respond to individuals with symptoms and encourage employees to report symptoms and stay at home when sick.
Notification of exposure
The time in which the employer must notify employees or independent contractors of their potential exposure to a COVID-19 case is now relaxed to “as soon as possible,” and such notice may be either a written notice to the individual exposed workers, or through display of a workplace notice for 15 days, starting one business day from the exposure.
Recordkeeping and Reporting
Until February 3, 2026, employers must continue to keep records and track all COVID-19 cases, but no longer must self-report COVID-19 cases and outbreaks to local public health departments (unless as otherwise required by local agencies). Now, employers must only report major outbreaks (defined as 20 or more cases in a work location, working area or common area) to Cal/OSHA.
President Biden signed a bill ending the national COVID-19 emergency on April 10, 2023, but the new permanent standards by Cal/OSHA create continuing obligations for California employers into the foreseeable future. Although employers are no longer required to maintain a stand-alone COVID-19 prevention plan under the permanent standards, they must at least incorporate COVID-19 information and training into their general injury and illness prevention plans, to include information about workplace exposure and transmission, measures to prevent workplace COVID-19 transmission, and methods for responding to COVID-19 cases at the workplace. Employers should review and update their written materials accordingly.