Cal/OSHA Activates Non-Emergency COVID Rule

Recently, California’s Office of Administrative Law approved the Division of Occupational Safety and Health’s (commonly known as Cal/OSHA’s) Non-Emergency COVID-19 Regulation. The regulation is effective immediately and covers most California employers. Additionally, Cal/OSHA released a document of Frequently Asked Questions (FAQs) as guidance for the Non-Emergency COVID-19 Regulation. Earlier, in November 2022, California legislators passed a series of assembly bills (ABs) that covered that affected the state’s COVID-19 relief grant program, related workers' compensation, and exposure notification requirements.

Overview of the Non-Emergency COVID-19 Regulation

Cal/OSHA’s Non-Emergency COVID-19 Regulation applies to all employers, employees, and places of employment, with a few exceptions. These exceptions include locations with only one employee who does not come in contact with other people, work-from-home employees, and those covered by the Aerosol Transmissible Diseases regulation. Overall, the new regulations relieve some of the burdens for employers under the previous COVID-19 emergency temporary standard. To adapt to the current state of the COVID-19 pandemic, the Non-Emergency COVID-19 Regulation makes the following changes:

• No longer requires employers to provide exclusion pay for workers who miss work because of COVID-19.
• It does not require employers to provide COVID-19 testing at no cost, and during paid time, for employees who have COVID-19 symptoms but did not have close contact at work. (There are exceptions during outbreaks.)
• Allows employers to end outbreak procedures after 14 days of one or no new COVID-19 cases.
• Adopts exposure notification requirements with AB 2693.
• Permits employers to include COVID-19 control measures within existing Injury and Illnesses Prevention programs.

The Non-Emergency COVID-19 Regulation is effective until February 3rd, 2025.

FAQs on Cal/OSHA’s Non-Emergency COVID-19 Regulation

The FAQs on Cal/OSHA’s Non-Emergency COVID-19 Regulation address several topics within the regulation. These topics include the regulation’s scope of coverage, face coverings, vaccines, training, quarantining, and recordkeeping. Notably, the FAQs address the regulation’s new indoor ventilation requirements. According to the regulation, employers must:

• follow the California Department of Public Health's and Cal/OSHA’s ventilation guidance, including the Interim Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments;
• maximize as much as possible the quantity of outside air provided, except when the U.S. Environmental Protection Agency's (EPA) Air Quality Index is greater than 100 for any pollutant or doing so would cause a hazard;
• circulate air through filters at least as protective as Minimum Efficiency Reporting Value (MERV)-13; and
• use High Efficiency Particulate Air (HEPA) filtration units in indoor areas occupied by employees for extended periods where ventilation is inadequate.

Employer Takeaways

Despite the lesser burden on employers compared to the previous emergency temporary standard (ETS), Cal/OSHA’s Non-Emergency COVID-19 Regulation still considers COVID-19 a workplace hazard. Thus, employers must still fulfill obligations under both the General Duty Clause of the Occupational Safety and Health Act of 1970 (OSH Act) and California’s Injury and Illness Prevention Program regulation. Obligations include providing employment and a place of employment free of all recognized hazards. Additionally, it is prudent for employers to still use best practices for preventing the spread of infectious diseases. These include symptom screening, communicating exposures, and using personal protective equipment (PPE) where needed. To ensure compliance with Cal/OSHA's Non-Emergency COVID-19 Regulation and other workplace safety requirements, employers should provide emergency preparedness training for employees. This training helps employees understand how to respond to potential COVID-19 exposures, follow updated safety protocols, and be prepared for any future outbreaks or health-related emergencies in the workplace.