On May 6, 2022, the California State Office of Administrative Law (OAL) adopted the third revision California Division of Occupational Safety and Health (Cal/OSHA) COVID-19 Temporary Emergency Standards (ETS), which are effective until December 31, 2022. On June 16, 2022, the Cal/OSHA Standards Board issued a published its draft COVID-19 regulations, which are expected to take effect on January 1, 2023. The pending regulations would generally apply upon approval by the OAL for two years after the effective date. The recordkeeping rules would apply for three years after the effective date.
The proposed definitions are as follows:
“’Expected Group’ means all employees in a workplace, work area, or common area at work, in employer-provided transportation…, or residing in [employer-provided] housing…, where an employee with COVID-19 was present at all times during the infectious period.
For people who test positive for COVID-19 and who develop symptoms related to COVID-19, “[i]“infectious period” would be defined as including “from two days before the date of onset of symptoms” until:
- “ten days have passed after the onset of the first symptoms, or until the fifth day if the test is negative on the fifth day or later”; and
- “Twenty-four hours have passed without fever, without the use of anti-fever medication, and symptoms have improved.”
For people diagnosed with COVID-19 but who do not develop symptoms of COVID-19, the infectious period is “two days before the date of the positive sample collection up to 10 days (or up to the fifth day if the test is negative on the fifth day or later) after the date the sample 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 workplaces where someone with COVID-19 was present. Employers would also be required to report cases of COVID-19 to the local health department (if required by law) and keep records of those cases.
Main Proposed Regulatory Changes
The proposed significant changes are as follows:
Danger in the workplace
The final draft rule would define COVID-19 as a workplace hazard. Under Cal/OSHA regulations, employers are required to “establish, implement and maintain an effective injury and illness prevention program,” which, according to the draft final rules, would include effective methods and/or procedures in place to respond to COVID-19. cases in the workplace. This requirement would not apply 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 grounds that dismissal of an employee would create an undue risk to the health and safety of a community. In such cases, the employer must develop, implement and maintain effective control measures to prevent transmission in the workplace, including isolation of the employee in the workplace and, if the isolation is not possible, the use of respirators in the workplace.
Testing would be required for all employees who have had close contact in the workplace.
Employers would be required to provide notice to notify employees, independent contractors and other employers whose employees have been in close contact with a case of COVID-19 in the workplace.
Employers would be required to provide employees with face coverings when required by California Department of Public Health (CDPH) regulation or order. Where face coverings are required to be worn indoors by regulation or order, “indoors” would include the interior of employer-owned vehicles.
“Whenever an employer makes respirators available for voluntary use, the employer must encourage their use and ensure that employees … are trained in how to properly wear the respirator provided; how to perform user seal verification…; and the fact that facial hair interferes with a seal.
“For indoor workplaces, employers should review the CRPD and [Cal/OSHA] guidance regarding ventilation, including “Interim Guidance for Ventilation, Filtration and Air Quality in Indoor Environments”.
Record keeping would include date of positive COVID-19 test and/or COVID-19 diagnosis. Employers would be required to keep records of people who have had close contact. Employers would be required to keep records “for two years beyond the period the record is needed to meet the requirements” of the proposed regulations. Employers would also be required to keep copies of required notices.
Cal/OSHA Special Action Orders
Cal/OSHA “may require an employer to take additional steps to protect employees from the dangers of COVID-19 by issuing a Special Measures Order.”
The outbreak and major outbreak sections of the draft rules would apply if there were at least three cases of COVID-19 (or at least twenty for major outbreaks) in an exposed group, unless a rule or a CDPH Order defines the outbreak using a different number of COVID-19 Cases and/or a different time period.
Key points to remember
The proposed regulations define COVID-19 as a workplace hazard for which an employer would be required to develop an effective disease prevention program that ensures implementation methods and/or procedures.
© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.National Law Review, Volume XII, Number 183