Cal/OSHA Announces Public Hearing on Proposed Permanent COVID-19 Standard – Employment and Workforce Wellbeing

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On September 15, 2022, the California Occupational Safety and Health Standards Board (“Board”) will hold a public hearing to discuss its proposed permanent COVID-19 standard (“Permanent Standard”).1 At the hearing, the Commission will hear comments from the public in support of the adoption, modification or repeal of the permanent standard. The good news for employers who are tired of revising their COVID-19 policies is that the permanent standard largely follows the protocols already required under the current COVID-19 Emergency Temporary Standards (“ETS”). In addition, the permanent standard eliminates or reduces some of the costly requirements of the current ETS. The bad news, however, is that it looks like COVID-19 protocols are here to stay for the foreseeable future and California employers will need to continue to comply with the state’s COVID-19 regulations and enforce them on the job. workplace.

Background

To date, the California Division of Occupational Safety and Health (“Cal/OSHA”) has adopted four versions of the ETS, which is codified in the California Code of Regulations, Title 8, Section 3205. and following. The original ETS was adopted on November 19, 2020 and entered into force on November 30, 2020. The current ETS is the fourth iteration, which entered into force on May 5, 2022 and remains in force until December 31, 2022. On June 18, 2022, Cal/OSHA released its language proposal 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 come into effect on January 1, 2023 and will remain in effect until December 31, 2024.

Differences between the ETS and the permanent standard

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

Although the requirements of the permanent standard are broadly similar to those of the current ETS, there are a few significant changes that will likely be the main talking points at the hearing. Here are six changes that will likely receive the most attention because of their impact on employers and employees.

Reduced requirements for employers:

1. Elimination of exclusion indemnity:

Employers are no longer required to pay exclusion pay to employees excluded from the workplace due to COVID-19. We hope this change will 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 for employers and employees, it will likely be a very controversial topic at the September 15, 2022 hearing.

2. Tests provided by the employer:

Permanent standard eliminates requirement for employers to make COVID-19 tests available to employees who are in close contact outside from the workplace and/or who show 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, again at no cost and during paid hours, only to employees who are in close contact within the workplace.

3. “Relaxing” Notification Requirement:

While previous iterations of the ETS called 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 practicable.” “. In theory, this could give employers a bit more leeway in responding to reports of a positive COVID-19 case. In practice, this change has little, if any, effect. Section 6409.6 of the Labor Code still requires that notice be given within one business day and although this section of the Labor Code is due to expire at the end of this year, pending legislation would extend its application until on January 1, 2025.

Additional requirements for employers:

1. New definition of “close contact”:

The Standing Standard’s definition of “close contact” mirrors that of the California Department of Public Health (“CDPH”) and states that 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 infectious period of the COVID-19 case. Not only is this broader and more ambiguous than the previous six-foot-15-minute rule, it dramatically increases the number of potential close contacts. Areas where employees may be more than six feet apart but in the same interior space include areas such as conference rooms, waiting rooms, break rooms, restrooms, and office floors with cubicles , to name a few. Employers will now have to use their discretion to determine which areas fall under this new definition and monitor those areas more closely.

2. Reporting cases and close contacts:

Employers are still required to keep records of COVID-19 cases and outbreaks. However, under the permanent standard, employers will also be required to keep close contact records. These records should 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 cases of COVID-19, these records must contain the employee’s name, contact information, occupation, location(s) where the employee worked, the date the employee worked for the last seen and the date of the last positive COVID-19 test. For close contacts, records should contain the employee’s name, contact information and the date the close contact was notified. These records must be kept confidential and retained for two years.

3. Respiratory protection for aerosol producers:

The permanent standard will require some employers to assess the need for respiratory protection for employees who are exposed to procedures that can aerosolize potentially infectious materials, such as saliva or respiratory fluid carrying COVID-19. This requirement will apply to employees working in workplaces that are not covered by the Aerosol Transmissible Disease (“ATD”) Standard (California Code of Regulations, Title 8, Section 5199), which contains specific requirements for the protection of employees against diseases and pathogens transmitted by aerosols. Examples of workplaces that this requirement may affect include certain dental procedures and certain outpatient medical specialties.

Conclusion

While the Commission can always modify the proposed wording in the permanent standard, it seems unlikely that any of the proposed requirements will change. Employers wishing to submit written comments may do so until 5:00 p.m. on the day of the September 15, 2022 hearing. Sheppard Mullin will continue to closely monitor any significant employment developments related to COVID-19, including including the upcoming hearing and any changes to the permanent standard. Employers with questions or concerns about the permanent standard or the current ETS should consult with an experienced employment attorney to ensure they comply with changing regulations and guidance.

The legal landscape continues to evolve rapidly and there is a lack of clear authority or clear rules on implementation. This article is not intended to be a unique and unequivocal guide, but rather represents our interpretation of the current and general state of applicable law. This article does not address the potential impacts of the many other local, state, and federal orders that have been issued in response to the COVID-19 pandemic, including, but not limited to, potential liability if an employee becomes ill, family leave requirements, sick leave pay and other issues.

Footnote

1. You can join 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/

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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