Helen Saulnier 
Seyfarth Synopsis: Two big changes are on the horizon for California employers:
(1) changes to the COVID-19 general exposure notification requirements and (2) a proposed “permanent” Cal/OSHA COVID-19 standard to take effect January 1, 2023-2025.
The fall season signals change between the warmth and sun of summer and the cold and wet of winter. This year, fall also includes upcoming changes to the regulatory landscape in California as it pertains to COVID-19. Specifically, the passage of AB 2693 in late September and a recent round of edits to a proposed permanent Cal/OSHA COVID-19 standard have given employers new things to consider. Both of these new provisions are set to be effective January 1, 2023.
General Exposure Notice Changes
Methods of Notification
As California employers are well aware, legislation enacted early in the pandemic requires that written general exposure notification be provided to employees who were at the same worksite at the same time as a person with COVID-19, advising them that they “may have been exposed” to COVID-19, providing information about available benefits, and providing information the employer’s cleaning and disinfection plan. That legislation was set to expire at the end of 2022. However Governor Newsom just signed a new bill—AB 2693—which extends the general exposure notification requirement until January 1, 2024.
But there’s good news too: AB 2693 significantly reduces the burden on employers by allowing an option for the notice of potential exposure to be posted at the worksite, or on an employee portal if other workplace notices are posted on the portal. Like the notice required under the current legislation, it must be posted within one business day from when the employer learns of the COVID-19 case, and remain posted for at least 15 calendar days.
Employers still have the option to provide written notice to covered workers, and the employers of subcontracted workers, if they prefer. But, employers must still provide a written notice to the exclusive representative, if any, of the COVID-19 case(s) and any employees who had close contact.
Records of the written notices provided and a log of the dates of the notices posted must be maintained for 3 years.
Content of the Notice
The information required in the notice is also changing. Now, employers do not need to notify employees or other workers on site that “they may have been exposed.”
Rather, the new version of the notice has been streamlined, and now requires the following be included:
- The dates on which an employee, or employee of a subcontracted employer, with a confirmed case of COVID-19 was on the worksite premises within the infectious period.
- The location of the exposures, including the department, floor, building, or other area, but the location does not need to be so specific that it would allow individual workers to be identified.
- Instead of providing detailed information on the specifics, employers now only need to provide contact information for where employees may receive information regarding COVID-19-related benefits they may be entitled under applicable federal, state, or local laws, as well as antiretaliation and antidiscrimination protections of the employee.
- As a reminder, these benefits may include categories such as workers’ compensation, COVID-19-related local or emergency leave, company sick leave, state-mandated leave, recently extended COVID supplemental sick leave (which we recently blogged about here), or negotiated leave provisions.
- As a best practice, companies should ensure that their HR, Safety, or designated management personnel are prepared to provide this information upon request and are familiar with the local options for both paid and unpaid leave.
- Likewise, employers now only need provide contact information for where employees may receive the cleaning and disinfection planthat the employer is implementing per the guidelines of the CDC and the Cal/OSHA standards.
- Note: Workplace cleaning and disinfection plans are not currently part of CDC guidelines or Cal/OSHA requirements, so many employers will likely refer to their normal cleaning and/or disinfection protocols that may be independent of COVID-19 mitigation measures.
AB 2693 also requires the notice to be in English and the language understood by the majority of the employees.
Proposed Permanent COVID-19 Cal/OSHA Standard
Another major change is looming in the horizon. On January 1, 2023, a new 2-year “permanent”, or “non-emergency”, COVID-19 standard will likely replace the existing Emergency Temporary Standards which we have extensively written about in the past.
Several variations on the proposed rules have already been circulated ahead of a December 15th CAL/OSHA public meeting, during which the Cal/OSHA Standards Board is widely expected to pass the new standard in advance of the December 31, 2022 expiration of the current ETS.
Much of the ETS has carried over into the new proposed standard, but there are also some major changes that employers should be aware of.
Highlights from the Proposed Non-Emergency Standard
- Definition changes. The proposed permanent standard makes changes to many of the definitions we have seen in the ETS. Some of the more significant changes include:
- “Close Contact” – Instead of a single definition for close contact, the proposed standard distinguishes between two scenarios based on workplace size. (Note that this new definition already applies in workplaces covered by the ETS because it was changed by an Order issued by CDPH on October 13, 2022).
- In indoor spaces of 400,000 cubic feet or less, a close contact results from sharing the same indoor space for 15 or more cumulative minutes within 24 hours during the infectious period. Here, six feet of distance does not matter.
- In indoor spaces of greater than 400,000 cubic feet, a close contact results from being within six feet of a COVID case for a cumulative total of 15 minutes or more within 24 hours during the infectious period.
- Importantly, each room with floor-to-ceiling walls makes up a distinct indoor space for purposes of this rule. Employees wearing a respirator during this time are not close contacts.
- “Exposed Group” – The new standard makes a few changes here. Most importantly, places where individuals momentarily pass through without congregating, regardless of whether they are wearing a face covering, are not considered for the purpose of determining if a group has been exposed.
- Under the current ETS, everyone in the space had to wear a face covering, even with respect to momentary exposures, or else they would be considered part of an exposed group.
- “Infectious Period” – Under the proposed permanent standard, the definition of infectious period is less stringent and allows for a shorter time frame.
- For symptomatic cases, the infectious period may now end five days (down from 10 days) after the arrival of symptoms if the individual tests negative on that day and has not had a fever for over 24 hours without medication.
- For asymptomatic cases, the infectious period may also end five days after a positive test if a negative test is produced on the fifth day.
- “Returned Case” – Instead of a 90-day period following the initial onset of symptoms or positive test, the proposed rules changes this to 30 days, after which time someone who returned to work following a COVID-19 related absence is no longer considered a returned case.
- This shortened time period means that employers may be required to provide COVID-19 testing to a larger number of employees, as returned cases under the ETS are exempt from the requirement.
- “Close Contact” – Instead of a single definition for close contact, the proposed standard distinguishes between two scenarios based on workplace size. (Note that this new definition already applies in workplaces covered by the ETS because it was changed by an Order issued by CDPH on October 13, 2022).
- Exclusion pay. One of the most notable differences between the current ETS and the proposed permanent standard is the absence of exclusion pay.
- Currently, employers must continue and maintain employees’ earnings, seniority, rights, and benefits if they have been excluded from the workplace due to COVID-19 exposure or illness contracted at work. Employers have to provide exclusion pay under the ETS before requiring employees to exhaust other forms of potential paid leave, like Supplemental Paid Sick Leave.
- The proposed permanent standard eliminates this provision. Instead, employers must only provide information to confirmed cases and close contacts about COVID-19 benefits they may be entitled to under local and federal law.
- Notice requirements. The notice requirements have also been somewhat streamlined.
- The ETS requires employers to provide written notice to all employees present at a worksite during the infectious period of a COVID-19 case within one business day of when they learn of the case. Notice must also be sent to independent contractors and other employers whose employees were on the premises during this period.
- The proposed permanent standard includes similar notice requirements, but changes the time frame for notice to “as soon as possible,” so long as the employer is able to meet any potential exclusion requirements. It also defers to Labor Code 6409.6 for the content and form of notice, which means employers would be allowed to do posting instead of providing notices in writing, in light of recent amendments mentioned above.
- Reporting and recordkeeping. Reporting and recordkeeping requirements have changed to reflect increasing priorities on cases and large outbreaks, rather than exposures or isolated cases.
- Employers no longer have to report information about workplace COVID-19 cases and outbreaks to their local health department. (Though employers need to be aware that local health departments may still promulgate their own requirements on reporting.)
- Additionally, while employers must keep a record of COVID-19 cases for two years, they no longer have to keep records of close contacts.
- The requirement that employers document the steps taken to implement a separate COVID-19 Prevention Program has also dropped away, meaning employers can generally rely on their standard Injury and Illness Prevention Program (IIPP), as long as the IIPP adequately addresses employee health and safety policies and procedures related to COVID-19.
- The proposed permanent standard adds that in a major outbreak setting, employers must report the outbreak to Cal/OSHA. The proposed rule does not specify a time frame within which the report must be made.
- Face coverings. In many ways, the rules remain the same. There are, however, some important distinctions:
- Under both the current and proposed standards, employees who are exempted from a mandatory face covering requirement due to medical, disability, or mental health reasons must wear “an effective nonrestrictive alternative” if possible. But, if a face covering is not possible, the proposed permanent standard no longer mandates any sort of testing for these employees.
- Employers are required to ensure employees wear face coverings when required by a CDPH regulation or order.
- Outbreaks. Currently, the ETS outbreak rules come in play once three or more COVID-19 cases in an exposed group visit a work site during their infectious period within a 14-day window, and last until there are no new cases detected in a 14-day period. The proposed permanent standard contains various key changes to these rules. Most notably:
- The provisions concerning outbreaks no longer apply once there have been one or fewer cases detected in an exposed group within a 14-day period. This change may slightly decrease the amount of time that an employer has to follow the more stringent procedures in the event of an outbreak.
- Currently, during an outbreak employers must evaluate whether HEPA or other filtration units would reduce the risk of transmission. The proposed standard requires employers to utilize HEPA units upon an outbreak whenever ventilation is inadequate to reduce transmission.
- Provisions on major outbreaks still apply when there are more than 20 cases detected in a 14-day period, and employers need to comply with those provisions as long as there is more than one case detected in the exposed group within a 14 day period.
- Finally, and very importantly, during a major outbreak, employers must report the outbreak to the Division. This is not a requirement under the current emergency standard.
- Return to work criteria. The criteria for when a COVID-19 case may return to work is largely the same, but under the proposed rule, there is no difference in the standard for those whose symptoms, other than a fever, remain. Thus, under the proposed permanent standard, the continued presence of symptoms is irrelevant if on the fifth day a negative test is produced, unless one of the symptoms is a fever.
- Ventilation. Currently, employers are required to evaluate how existing ventilation systems may be modified to maximize ventilation with outdoor air. The proposed rule eliminates this language.
- Instead, the proposed non-emergency standard obligates employers to “develop, implement, and maintain” a prevention plan that incorporates at least one of the following:
- Maximizing outdoor air when ambient conditions do not pose a hazard.
- Filtering circulated air through a MERV-13 filter or as much filtration as the existing ventilation system will permit.
- Using HEPA filtration units in indoor spaces when ventilation is inadequate.
- Instead, the proposed non-emergency standard obligates employers to “develop, implement, and maintain” a prevention plan that incorporates at least one of the following:
- Employer-provided housing. Unlike the ETS, the proposed rule would not require employers to prioritize housing assignments in a particular order. Instead, it merely directs employers to consider distinct cohorts in housing assignments.
- Employer-provided transportation. Many of the requirements of the ETS pertaining to transportation have been dropped. In their place, the proposed standard instructs employers to comply with the general provisions applicable to workplaces.
The rules highlighted here represent the most substantive differences between the ongoing ETS and the proposed permanent standard set to replace it at the start of 2023. The Division is accepting comments by email ([email protected]) on the most recent version of the proposed standard until October 31st. It remains possible that the proposed “permanent standard” that ultimately goes into effect may be different in some regards than what’s currently proposed.
Workplace Solutions
Stay tuned for updated guidance and developments on the workplace safety front in California. Seyfarth will be closely monitoring the outcome of the December 15 meeting on the proposed permanent standard, and will be updating our readers here. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.
