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Tappin: COVID-19 in the Workplace: Updates on Legislation

  • State: California

As COVID-19 continues to linger in California, it remains an ongoing concern for state lawmakers. In response to this threat, California continues to provide updated regulations as it pertains to COVID in the workplace. This article will cover the recent updates adopted by the state.

Crystal Tappin

Crystal Tappin

Non-emergency COVID-19 prevention regulations

Up until present, the state has been operating under emergency temporary standards as it pertains to COVID-19 prevention regulations. On Dec. 15, 2022, non-emergency COVID-19 prevention regulations were adopted. Said regulations will take effect once they are approved by the Office of Administrative Law (OAL), which was set to take place in January 2023. However, the OAL has 30 working days to complete its review, so the final adoption of these regulations remains pending.

The COVID-19 prevention emergency temporary standards (ETS) remain in effect up until the new regulations are officially approved by the OAL. The non-emergency standards are set to remain in effect for two years from the date of approval by the OAL.

While the new regulations include many of the requirements found in the previously issued emergency temporary standards, there are also some key changes that are directed both at making it easier for employers to abide by the protections required and to allow more flexibility for employers as further potential changes are implemented as needed from the California Department of Public Health.

Changes to the COVID-19 prevention regulations:

  • Employers are no longer required to maintain a standalone COVID-19 prevention plan. Instead, employers must now address COVID-19 as a workplace hazard under the requirements found in Section 3203 (Injury and Illness Prevention Program, IIPP), and include their COVID-19 procedures to prevent this health hazard in their written IIPP or in a separate document.
  • Employers must provide effective COVID-19 hazard prevention training to employees.
  • Employers must provide face coverings when required by CDPH and provide respirators upon request.
  • Employers must identify COVID-19 health hazards and develop methods to prevent transmission in the workplace.
  • Employers must investigate and respond to COVID-19 cases and certain employees after close contact.
  • Employers must make testing available at no cost to employees, including to all employees in the exposed group during an outbreak or a major outbreak. An outbreak is defined as three or more cases in a workplace within a 14-day period. A major outbreak is defined as 20 or more COVID-19 cases in an exposed group who visited the workplace during their infectious period within a 30-day period.
  • Employers must notify affected employees of COVID-19 cases in the workplace.
  • Employers must maintain records of COVID-19 cases and immediately report serious illnesses to Cal/OSHA and to the local health department when required.
  • Employers must now report major outbreaks to Cal/OSHA.

The COVID-19 prevention regulations do not require employers to pay employees while they are excluded from work. Instead, the regulations require employers to provide employees with information regarding COVID-19-related benefits they may be entitled to under federal, state or local laws; their employer’s leave policies; or leave guaranteed by contract.

Changes to related definitions

  • "Close contact" is now defined by looking at the size of the workplace in which the exposure takes place.
  • For indoor airspaces of 400,000 or fewer cubic feet, “close contact” is now defined as sharing the same indoor airspace with a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the case’s infectious period.
  • For indoor airspaces of greater than 400,000 cubic feet, “close contact” is defined as being within 6 feet of 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.
  • “Exposed group” was clarified to include employer-provided transportation and employees residing within employer-provided housing who are covered by the COVID-19 prevention standards.

Requirements from the emergency temporary standards that remain a part of the COVID-19 prevention regulations:

  • Employers must provide face coverings and ensure they are worn by employees when CDPH requires their use.
  • Employers must review CDPH guidance for the use of face masks to learn when employees must wear face coverings. Note: Employees still have the right to wear face coverings at work and to request respirators from the employer when working indoors and during outbreaks.
  • Employers must report information about employee deaths, serious injuries and serious occupational illnesses to Cal/OSHA, consistent with existing regulations.
  • Employers must make COVID-19 testing available at no cost and during paid time to employees following a close contact.
  • Employers must exclude COVID-19 cases from the workplace until they are no longer an infection risk, and implement policies to prevent transmission after close contact.
  • Employers must review CDPH and Cal/OSHA guidance regarding ventilation, including CDPH and Cal/OSHA interim guidance for ventilation, filtration and air quality in indoor environments.
  • Employers must also develop, implement and maintain effective methods to prevent COVID-19 transmission by improving ventilation.
  • This guidance is an overview. For full requirements, see Title 8 Sections 3205, 3205.1, 3205.2 and 3205.3, masking.

The universal indoor masking requirement that was allowed to expire as of Feb. 15, 2022, remains expired.

On March 1, 2022, the requirement for unvaccinated persons to mask in indoor public settings and businesses was replaced by a strong recommendation that all people, regardless of vaccine status, mask in indoor public settings and businesses. Additionally, after March 11, 2022, the universal masking requirement for K-12 and child care settings terminated.

On April 20, 2022, the universal masking requirement on public transit and in transit hubs was replaced by strong recommendations that people continue to mask while on public transit and indoors in transit hubs.

Crystal Tappin is an associate attorney in the Oakland office of Laughlin, Falbo, Levy & Moresi, a workers' compensation defense firm.

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