Cal/OSHA Adopts New COVID-19 Regulation

12.23.2022

The California Occupational Safety and Health Standards Board (“Board”) voted to adopt a non-emergency COVID-19 Prevention regulation.  The new regulation is submitted to the Office of Administrative Law (“OAL”) for approval.  The OAL has 30 days to approve the new regulation.  Once approved, the regulation will remain in effect for two years after the effective date. 

The Board heard comments from various stakeholders at the meeting on December 15, 2022.  Many employers objected to the proposed regulation as being unnecessary since the Injury & Illness Prevention Plan (“IIPP”) provided adequate protection for employees.  The new regulation incorporates definitions from the California Department of Public Health which includes the new definition for “close contact.”  The new definition is based on the cubic foot size of the building which makes the regulation difficult and confusing to implement.   Labor advocates objected to the new regulation because it eliminated the exclusion pay provisions.  Many Board members had previously indicated they would not approve the proposed regulation if it did not include exclusionary pay.  Ultimately, these Board members changed their positions and voted 6-1 to approve the proposed regulation. 

While many of the requirements of the Emergency Temporary Standards (“ETS”) remain in effect, there are new provisions.  The following are some of the key changes:

• The new regulation removes the exclusion pay provisions.
• New definition for “close contact:”
• For indoor spaces of 400,000 or fewer cubic feet per floor, a close contact is defined as sharing the same indoor airspace 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, as defined in the regulations, regardless of the use of face coverings.
• For indoor spaces of greater than 400,000 cubic feet per floor, a close contact is defined as being within six feet of the 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, as defined in the regulations, regardless of the use of face coverings.
• Offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls shall be considered distinct indoor spaces.
• The new regulation notes that if the CDPH changes the definition of “close contact” then this definition automatically changes.
• “Exposed group” was clarified to include employer-provided transportation and employees residing within employer-provided housing who are covered by the COVID-19 prevention standards.

AALRR will continue to monitor the status of COVID-19 restrictions statewide.  Employers should take care to comply with all local and State restrictions and guidelines.  If you have any questions regarding the new regulation or what your organization may need to do to stay in compliance, including assistance with developing policies appropriate to your workplace and workforce, please contact the authors or your usual counsel at AALRR who can provide advice and counsel specific to your particular circumstances.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. © 2022 Atkinson, Andelson, Loya, Ruud & Romo