On December 15, 2022, the Occupational Safety and Health Standards Board (OSHSB) voted to adopt the COVID-19 Prevention Non-Emergency Regulations (the Non-Emergency Regulation). Once the Non-Emergency Regulation takes effect, the regulations will remain in effect for two years, except for the recordkeeping subsections, which will apply for three years. As the California Division of Occupational Safety and Health (Cal/OSHA) makes clear, “[t]hese regulations include some of the same requirements found in the COVID-19 Prevention Emergency Temporary Standards (ETS), as well as new provisions aimed at making it easier for employers to provide consistent protections to workers and allow for flexibility if changes are made to guidance in the future from the California Department of Public Health.” Cal/OSHA has already posted a fact sheet regarding the Non-Emergency Regulation.

Although the Non-Emergency Regulation is not yet in effect, employers should promptly familiarize themselves with the requirements. Notable aspects of the Non-Emergency Regulation are discussed below.

Non-Emergency Regulation Highlights:

  • Elimination of exclusion pay. Unlike the ETS, the Non-Emergency Regulation does not require employers to maintain an employee’s pay and benefits during isolation and quarantine when an employee suffers a work-related COVID-19 exposure—so-called “exclusion pay.” Instead, employers should provide employees with information regarding COVID-19-related benefits employees may be entitled to under applicable federal, state, or local laws, including any benefits under legally mandated paid sick leave, workers’ compensation, or an employer’s own leave policies.
  • “Close contact” definition. The Non-Emergency Regulation changes the definition of “close contact” to be in accord with the definition set forth by the California Department of Public Health (CDPH). Going forward, if CDPH changes the definition of close contact, the Non-Emergency Regulation will apply CDPH’s definition. Further analysis regarding CDPH’s current definition can be found here.
  • “Infectious period” definition. The Non-Emergency Regulation will use the CDPH’s definition of “infectious period.” Information regarding the current definition can be found here.
  • COVID-19 policies in a written Injury and Illness Prevention Program (IIPP). The ETS required employers to maintain a separate COVID-19 Prevention Plan. Under the Non-Emergency Regulation, employers may now address their COVID-19 procedures with a written IIPP (pursuant to Section 3203) or maintain it in a separate document. Among other things, the IIPP must include measures to prevent COVID-19 transmission and identify and correct COVID-19 hazards, employee training, procedures to investigate COVID-19 illness at the workplace, and procedures for responding to positive COVID-19 cases at work.
  • Screening and testing. The Non-Emergency Regulation does not require employers to screen employees before entering the worksite. However, the Non-Emergency Regulation still generally requires employers to provide testing, at no cost, during paid time, to employees following a close contact in the workplace. The employer must also provide such employees with information about benefits available to them.
  • Notice. The Non-Emergency Regulation has notice requirements, including requiring employers to notify employees and independent contractors who had a close contact interaction “as soon as possible.”
  • Face coverings. Employers must provide face coverings and ensure employees wear them when CDPH requires. Employers cannot prevent employees from wearing a face covering (which includes a respirator) unless it creates a safety hazard. Moreover, as was required by the ETS, employers must provide respirators for voluntary use to employees who work indoors or in vehicles with more than one individual under the Non-Emergency Regulation.
  • Ventilation requirements. The Non-Emergency Regulation requires employers to review CDPH guidance on ventilation and to “develop, implement, and maintain effective methods to prevent transmission of COVID-19.” Employers shall improve ventilation by (1) maximizing the supply of outside air to the extent possible; (2) filtering circulated air through filters “at least as protective as Minimum Efficiency Reporting Value (MERV-13), or the highest level of filtration efficiency compatible with the existing mechanical ventilation system” in buildings and structures that have mechanical ventilation; or (3) using High-Efficiency Particulate Air (HEPA) filtration units indoors.
  • Recordkeeping. Employers must track and record all COVID-19 cases. The records must be kept for two years beyond the period in which it is necessary to meet the requirements of the Non-Emergency Regulation. The record must include the employee’s name, contact information, occupation, location of where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test or diagnosis. Employers must keep personal identifying information (PII) confidential.
  • Outbreaks. The Non-Emergency Regulation defines an outbreak as three or more COVID-19 cases within an exposed group who visited the worksite during their infectious period at any time during a 14-day period. A “major outbreak” occurs if 20 or more employee COVID-19 cases in an exposed group visited the worksite during their infectious period within a 30-day period.
    • Under the Non-Emergency Regulation, employers must follow the testing requirements set forth therein and make testing available at no cost to employees in an exposed group during an outbreak or a major outbreak, as specified.
    • The Non-Emergency Regulation requires employees in the exposed group to wear face coverings when indoors, as specified. In a major outbreak, employers must provide respirators for voluntary use to employees in the exposed group.
    • The Non-Emergency Regulation requires employers to conduct a specified COVID-19 investigation, review, and hazard correction for outbreaks and major outbreaks.
    • The Non-Emergency Regulation also requires employers to report major outbreaks to Cal/OSHA.

What’s Next?

Now that the OSHSB has voted to adopt the Non-Emergency Regulation, the Office of Administrative Law (OAL) has 30 days to review and approve. Once approved (which Cal/OSHA anticipates occurring in January 2023), the Non-Emergency Regulation will take effect and remain in effect for two years. Until the Non-Emergency Regulation becomes effective, employers must continue to comply with the ETS.

Employers should seek the advice of counsel if they have questions regarding how to modify their policies and practices to comply with the Non-Emergency Regulation.