On September 15, 2022, the California Occupational Safety and Health Standards Board (“Board”) will hold a public hearing to address its draft proposed COVID-19 Permanent Standard (“Permanent Standard”).¹ At the hearing, the Board will hear comments from the public in favor of adopting, amending, or repealing the Permanent Standard. The good news for employers who are tired of revising their COVID-19 policies is that the Permanent Standard largely tracks with the protocols already required under the current COVID-19 Emergency Temporary Standards (“ETS”). Additionally, the Permanent Standard eliminates or reduces some of the costly requirements under the current ETS. The bad news, however, is that it appears COVID-19 protocols are here to stay for the near future and California employers will need to continue to remain in compliance with the state’s COVID-19 regulations and enforce them in the workplace.

Background

To date, the California Division of Occupational Safety and Health (“Cal/OSHA”) has adopted four iterations of the ETS, which is codified in California Code of Regulations, Title 8, Section 3205 et seq. The original ETS was adopted November 19, 2020, and became effective on November 30, 2020. The current ETS is the fourth iteration, which became effective on May 5, 2022, and remains in effect until December 31, 2022. On June 18, 2022, Cal/OSHA published its proposed language for the Permanent Standard, which appears to be a slightly less stringent version of the current ETS. If adopted, the so-called “Permanent” Standard will become effective January 1, 2023, and remain in effect until December 31, 2024.

Differences Between the ETS and the Permanent Standard

Unlike the ETS, the Permanent Standard does not state that employers must maintain a written COVID-19 Prevention Program (“CPP”). However, the Permanent Standard does state that an employer’s COVID-19 procedures must either be addressed in the employer’s written Injury and Illness Prevention Program (“IIPP”) or maintained in a separate document. Thus, it appears that employers should either maintain their CPP or incorporate it into their IIPP.

Although the requirements under the Permanent Standard are largely similar to the current ETS, there are a few important changes that will likely be the primary discussion points at the hearing. Addressed below are six changes that will likely receive the bulk of the attention due to their impact on employers and employees alike.

Reduced Requirements for Employers:

1. Elimination of Exclusion Pay:

Employers are no longer required to provide exclusion pay to employees excluded from the workplace due to COVID-19. This change will hopefully reduce some of the financial burden that COVID-19 and the ETS have placed on employers. However, due to the financial impact of this change to both employers and employees, this will likely be a hotly contested topic at the September 15, 2022, hearing. 

2. Employer-Provided Testing:

The Permanent Standard eliminates the requirement that employers make COVID-19 testing available to employees who are a close contact outside of the workplace and/or who experience symptoms. Under the Permanent Standard, employers would no longer be required to provide COVID-19 testing to all symptomatic employees. Instead, employers will only be required to provide testing, still at no cost and during paid time, to employees who are a close contact within the workplace. 

3. “Relaxed” Notice Requirement:

While the prior iterations of the ETS call for notice of potential exposure to be given to employees and independent contractors within one day, the Draft Standard now calls for notice to be given “as soon as possible.” In theory, this might give employers slightly more breathing room to respond to information regarding a positive COVID-19 case. In practice, this change has little effect, if any. Labor Code section 6409.6 still requires that notice be given within one business day and although this section of the Labor Code is set to expire at the end of this year, pending legislation would extend its enforcement until January 1, 2025.

Added Requirements for Employers:

1. New Definition of “Close Contact”:

The Permanent Standard’s definition of “close contact” mirrors that of the California Department of Public Health (“CDPH”) and states close contact means “sharing the same indoor space as 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.” Not only is this broader and more ambiguous than the previous six-feet/15-minute rule, but it substantially increases the number of potential close contacts. Areas where employees may be more than six feet apart but in the same indoor space includes areas such as conference rooms, waiting rooms, break rooms, restrooms, and office floors with cubicles, just to name a few. Employers will now have to use their discretion to determine which areas fall under this new definition and more closely monitor those areas.

2. Reporting of Cases and Close Contacts:

Employers are still required to keep records of COVID-19 cases and outbreaks. However, under the Permanent Standard, employers also will be required to keep records of close contacts. These records must be provided to the local health department, CDPH, Cal/OSHA, or the National Institute for Occupational Safety and Health upon request.

As a reminder, for COVID-19 cases, these records should contain the employee’s name, contact information, occupation, location(s) where the employee worked, the date the employee last worked, and date of last positive COVID-19 test. For close contacts, the records should contain the employee’s name, contact information, and the date the close contact was provided notice. These records should be kept confidential and be retained for two years.

3. Respiratory Protection for Aerosol Producers:

The Permanent Standard will require certain employers to evaluate the need for respiratory protection for employees who are exposed to procedures that may aerosolize potentially infectious materials, such as saliva or respiratory tract fluid carrying COVID-19. This requirement will apply to employees in work settings that are not covered by the Aerosol Transmissible Diseases (“ATD”) standard (California Code of Regulations, title 8, section 5199), which contains specific requirements for protecting employees from diseases and pathogens transmitted by aerosols. Examples of work settings that this requirement may affect include certain dental procedures and certain outpatient medical specialties.

Conclusion

Although the Board still can modify the proposed language in the Permanent Standard, it seems unlikely that any of the proposed requirements will change. Employers who wish to submit written comments may do so until 5:00 p.m. on the day of the hearing on September 15, 2022. Sheppard Mullin will continue to closely monitor any important employment developments related to COVID-19, including the upcoming hearing and any changes to the Permanent Standard. Employers with any questions or concerns about the Permanent Standard or the current ETS should consult with experienced employment counsel to ensure they are compliant with the evolving regulations and guidance.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

FOOTNOTES

¹ You can access the meeting virtually at www.webex.com (meeting ID 268 984 996), by teleconference at (844) 992-4726 (Access code 268 984 996), or by live video stream and audio stream) at https://videobookcase.com/california/oshsb/