New COVID-19 Prevention Regulations Are Now in Effect: The End of Exclusion Pay

On December 15, 2022, the California Occupational Safety and Health Standards Board voted to adopt non-emergency COVID-19 prevention regulations (“New Regulations.”) The New Regulations, which went into effect February 3, 2023, replace the previous COVID-19 Emergency Temporary Standards (“ETS”) and will remain in effect through February 3, 2025, with recordkeeping requirements in effect through February 3, 2026.

With the approval of the New Regulations, Cal/OSHA prepared new Frequently Asked Questions as guidance for employers. A summary of the New Regulations and related guidance is provided below.

Written COVID-19 Prevention Plan: As per the original ETS, the New Regulations also identify COVID-19 as “a workplace hazard” and require employers to establish, implement, and maintain written COVID-19 procedures, either as part of the employer’s Injury and Illness Prevention Program (“IIPP”) or in a separate document (Cal/OSHA created a model plan for employers.) Employers must train employees on COVID-19 topics in accordance with IIPP regulations.

Close Contact: The New Regulations follow the California Department of Public Health (“CDPH”) definition of “close contact” which is now defined as follows:

In indoor spaces of 400,000 or fewer cubic feet per floor, a close contact is defined as sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period.

In large indoor spaces greater than 400,000 cubic feet per floor, a 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.

Offices, suites, rooms, waiting areas, break or eating areas, bathrooms or other spaces that are separated by floor-to-ceiling walls are considered distinct indoor airspaces.

To determine the “cubic feet” Cal/OSHA suggests the following formula: Length of space X (multiplied by) Width of space X (multiplied by) Height of space = Volume of space

Examples:

A store is 60 feet long and 40 feet wide, and has a 24 foot high ceiling. The cubic feet of the indoor space of the store is: 60 feet X 40 feet X 24 feet = 57,600 cubic feet.

A warehouse is 200 feet long and 150 feet wide, and has a 24 foot high ceiling. The cubic feet of the indoor space of the warehouse is: 200 feet X 150 feet X 24 feet = 720,000 cubic feet.

Exclusion of COVID-19 cases still required (but no more exclusion pay): Employees with COVID-19 must be excluded from the workplace unless they test negative on day five or later, or until day 10 of the first positive test. The New Regulations removed the exclusion pay requirement but require employers to give excluded employees information regarding COVID-19-related benefits to which the employee may be entitled under applicable law or employer policies.

The FAQs suggest that employees who believe they contracted COVID-19 at work should file a workers’ compensation claim with their employer.

Free Testing and Face Covering: For those who may have been exposed to COVID-19 at work, an employer must provide notice of the potential exposure (or post it in the workplace) and provide free COVID-19 tests during paid time, to all employees who may have had close contact at work (employees who had COVID-19 in the past 30 days are excluded).

According to current guidance for close contacts, exposed employees may be asked to test within 3-5 days after exposure and wear  face covering around others for a total of 10 days. Per the New Regulations, face coverings must be provided by the employer when required by CDPH regulations or order and at employees’ request.

Free weekly and twice weekly testing is required if there is an outbreak or major outbreak at work (respectively).

Recordkeeping: Similar to the ETS, the New Regulations continue to require employers to keep a record of and track all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of the positive COVID-19 test and/or COVID-19 diagnosis. These records must be kept for at least two years and kept as confidential (unless disclosure is required or permitted by law).

Though restrictions concerning COVID-19 seem to be declining and local and national health emergency measures are set to end, employers are still required to take steps to protect their employees from COVID-19 hazards at work. Those steps include:

• Following relevant guidance regarding isolation/quarantine
• Having a written plan for COVID-19 cases at work
• Providing relevant notices
• Offering free testing (on paid time), and
• Maintaining a sufficient supply of surgical masks or higher-filtration masks (e.g., N95s, KN95s, KF94s)

Sue M. Bendavid and Tal Burnovski Yeyni are employment defense attorneys.