On December 31, 2022, Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) finally sunset. However, the Standards Board has been working to pass a permanent standard to ensure it is in place before the expiration of the ETS. The Board has announced it will be voting on the permanent standard at its upcoming meeting on December 15^th.

Of note, while it is called a permanent standard, the proposed standard includes a two-year sunset, consistent with the recognition that COVID-19 is now moving into its endemic phase.

As employers prepare for a permanent standard here are some of the highlights of what will stay the same and change from the ETS.

Changes from ETS

• End of Exclusion Pay.  One of the biggest changes in the permanent standard is that exclusion pay will no longer be required to compensate employees who miss work due to an employer-caused COVID-19 exposure.

• Modified Masking Requirements. Certain mask requirements have been removed from the permanent standard. The definition of an “exposed group” still contains a “momentary pass-through” exception. This exception is being broadened to include individuals who are not masked. As re-defined, the momentary pass-through exception applies to a place where persons momentarily pass through without congregating, provided that it is not a work location, working area, or a common area at work.

• Reduced Reporting Requirements. Employers will no longer be required to report outbreaks to the local health department under the permanent standard. Moreover, a COVID-19 outbreak can be deemed over when “one or fewer” new cases are detected in the exposed group for a 14-day period. An investigation, review, and correction of hazards following an outbreak no longer will be required to be “immediate” following an outbreak.

Continuation from ETS

• Testing and Notice Requirements Remain. Under the proposed permanent standard, employers will be required to provide testing and employee notices after exposure. This is in line with recent legislation extending certain COVID-19 exposure requirements until 2024.

• Recordkeeping Requirements.  Employers will still be required to maintain records of workers’ infections, but they will not need to maintain records of employees deemed a close contact.

• Updated Definition of “Close Contact.”  The definition of “close contact,” which is important for purposes of notice, also continues to be linked to the California Department of Public Health definition.