Sometimes, the holidays come with gifts that … aren’t necessarily what the recipient asked for. The Cal/OSHA Standards Board gave just such a gift to the employer community on Thursday, December 15th, when it voted 6-1 to continue California’s COVID-19 regulation until December of 2024. The silver lining on ongoing burden for California employers is that, as part of its transition from an emergency regulation into a non-emergency regulation, Cal/OSHA has made some changes to the regulation that will improve feasibility for California’s workplaces.
What Stays the Same for Workplaces?
The basic framework of the non-emergency COVID-19 regulation is going to be familiar to human resources professionals and lawyers who have grappled with application across the state for the last two years. It will continue to apply to the same work locations and rely on the same basic tools: identification of COVID-19 cases in the workplace, exclusion of any employee cases, identification & no-cost testing of close contacts, and outbreak protocols if three or more cases occur.
The “New” Close Contacts Definition: Spreading a Wider Net.
The most profound administrative change was arguably made earlier this year, when the California Department of Public Health changed the definition of a “close contact” to hinge on the size of the workplace, but this change is being incorporated into the 2-year regulation’s text, so it deserves a re-examination.
For “indoor spaces larger than 400,000 cubic feet per floor, a close contact is … being within six feet for a cumulative total of 15 minutes or more over a 24-hour period.” Alternatively, for “indoor airspaces of 400,000 cubic feet or fewer per floor, a close contact is …sharing the same indoor airspace as a COVID-19 case for 15 minutes or more over a 24-hour period.” This change has created ongoing operational questions for employers across California as they struggle with implementation questions. For example: if I have doors that open and close regularly – such as between a loading area and open floor – is that one unified “indoor airspace”? Or must the doors be open constantly? And if doors or windows are consistently left open, allowing airflow in and out of an area, how is that area treated? And, for spaces smaller than 400,000 cubic feet, is a person 100 feet away from another for 15 minutes really a “close” contact?
So though the word “close contact” remains the yardstick of the regulation, employers should keep in mind that this word will no longer mean the well-known six-foot/fifteen-minutes standard of prior years.
Other Significant Changes: Outbreaks, Exclusion Pay, and More.
Among other significant changes, employers should know that outbreak protocols can end slightly sooner under the new text. Whereas outbreak protocols previously had to continue until an employer had a two-week period with zero cases in the exposed group (regardless of whether that was caused by a workplace exposure), the new text will allow outbreaks to end so long as one or less cases occur in a two-week period. This change was one that CalChamber had proposed and means that the outbreak trigger (three cases or more in an exposed group) is now more in line with the outbreak exit threshold (one or fewer cases).
In addition, exclusion pay is being removed from the regulation, meaning employers will no longer be required to provide unlimited paid sick leave whenever a COVID-19 case occurs in the workplace. Notably, the employer will still be required to keep cases out of the workplace pursuant to the regulation and excluded employees will be eligible for existing sick leave protections and workers compensation, as well as being protected from discipline related to their COVID-19 status under existing labor law protections.
When Do the Changes Go into Effect?
One important misconception here is that the new two-year version does not necessarily go into effect on January 1st; instead, it goes into effect when the Office of Administrative Law has reviewed and approved the text. This is important for California employers to understand because it means that the present text may technically remain in effect until as late as mid-January.
What Else to Expect in 2023 for California’s COVID Regulation?
The second silver lining of this vote for California’s business community is that we should see a slowing of the rate of change for the COVID-19 regulation. As we all know by now, the COVID-19 regulation’s text (as well as the related FAQ’s and CDPH guidance) have been a fast-moving target over the last few years, with tweaks and updates coming every few months. This has pushed human resources professionals, attorneys, and particularly small business owners, into a frenzied state of constant catch-up. With this new two-year regulation passed as a non-emergency regulation, I expect that the Division staff (who wrote and re-wrote the regulation and FAQ’s) will be trying to refocus their efforts on other priorities and will largely leave this text alone.
Those other agency priorities include: (1) bringing an update to California’s lead regulation and a new workplace violence regulation before the Standards Board for notice and formal rulemaking; and (2) holding advisory committee discussions on other rulemakings, including updates to the state’s first aid regulation and walking-working surfaces regulation.
Those are the gifts from Cal/OSHA for this holiday season. Though they may not be precisely what we wanted, at least we got them out of the way early. Personally, I’m going to put them out of my head (as much as I can given the questions I get from many of you readers!), and focus on catching up on holiday shopping. With that, I wish you all a wonderful holiday season with your friends and families and hope any other gifts you receive are a bit more fun!