Since 2021, occupational safety and health agencies have enacted a variety of rules addressing the workplace hazards of the COVID-19 pandemic. Agencies have generally used their emergency authority, which allow more administrative leeway to speed enactment but then require automatic expiration within months (although re-enactments are possible). I’ve written about a number of these efforts, including the federal Occupational Safety and Health Administration (OSHA) “emergency temporary standard (ETS),” which was stymied by litigation (see HERE). Some states have enacted their own ETSs; California adopted its own ETS and then readopted it every 180 days in order to keep rules in force (see HERE).
In December 2022, California’s Occupational Safety and Health Standards Board replaced the state’s ETS with “non-emergency” rules designed to remain in place for 2 years. Most of the changes are editorial and procedural, but some directly affect employer responsibilities. Assuming the revised rules receive administrative approval this month, they will be enforced by Division of Occupational Safety and Health (DOSH, but universally called Cal/OSHA) as replacements for California’s ETS. The remainder of this note summarizes these newly revised and extended requirements, noting changes from the most recent ETS.
How are California’s COVID-19 rules organized?
The proposed rules span four sections of Title 8 of the California Code of Regulations (CCR):
- 3205.1, 3205.2, and 3205.3 COVID-19 Prevention
- 1 Multiple COVID-19 Infections and COVID-19 Outbreaks
- 2 COVID-19 Prevention in Employer-Provided Housing
- 3 COVID-19 Prevention in Employer-Provided Transportation
Who is subject to the standards?
The newly proposed regulations apply to all “employees and places of employment,” except the following:
- Work locations with one employee who does not have contact with other persons.
- Employees working from home.
- Employees in a variety of healthcare settings with occupational exposure to “aerosol transmissible diseases” (covered by 8 CCR 5199).
- Employees teleworking from a location of their own choice, not under the employer’s control.
Note that this definition is based on employees, not employers, so the standards apply to any employer with one or more covered employees.
Most requirements focus on an “exposed group” of employees. The new non-emergency rules expand the regulatory definition for this term beyond workplaces to include employer-provided transportation and housing; the term now “means all employees at a work location, working area, or a common area at work, within employer-provided transportation …, or residing within housing …, where an employee COVID-19 case was present at any time during the infectious period.”
What must employers do?
The latest revisions expressly declare COVID-19 to be a “workplace hazard”, which is therefore subject to California employers’ general duty to protect employees, and to provide comprehensive Injury and Illness Prevention Programs (IIPPs; I discussed them HERE). This represents a change from the latest ETS, which required employers to establish, implement, and maintain an effective, written COVID-19 Prevention Program, and gave them to option to incorporate that program into their general-purpose IIPP. In the context of the IIPP, employees are responsible for the following
- consider all persons to be potentially infectious, regardless of symptoms, vaccination status, or negative COVID-19 test results
- review applicable orders and guidance related to COVID-19 from the State of California and the local health department, and treat COVID-19 as an airborne infectious disease
- apply COVID-19 prevention controls include remote work, physical distancing, reducing the density of people indoors, moving indoor tasks outdoors, implementing separate shifts and/or break times, restricting access to the work area, and other prevention measures, in addition to the requirements in the revised COVID-19 rules
- provide employees with training about COVID-19 and its hazards
- investigate any COVID-19 illness at work
- establish “effective methods and/or procedures for responding to a COVID-19 case at the workplace”, including exclusion of infected individuals and free testing at least weekly of every member of an exposed group from the time the exposure is known until 14 days after all members test negative (control methods are detailed in section 3205.1)
- provide notice to and testing of all “close contacts” of a case
- provide face covers and ensure they are worn when required by the California Department of Public Health (CDPH)
- provide respirators for voluntary use
- review and ensure the adequacy of workplace ventilation
- evaluate the need for respirators if any “aerosolizing procedure” is undertaken
- provide required record keeping and reporting (following general I&I requirements)
- comply with any additional order by Cal/OSHA
Employers must also comply with additional targeted requirements applicable because of any of the following:
- “COVID-19 outbreak” (8 CCR 3205.1)
- Employer-provided housing (8 CCR 3205.2)
- Employer-provided transportation (8 CCR 3205.3)
Cal/OSHA anticipates formal approval of these rules during January 2023, after which they will remain in force for two years. Organizations with employees in California must comply with these requirements, and employers outside California should consider voluntary programs consistent with these requirements. Note that California is one of the few states to require an IIPP; employers in most of the US should consider OSHA’s recommendations to establish and implement comprehensive safety and health programs.
If the organization has employees in California, has it reviewed its COVID-19 prevention activities to ensure they comply with the latest requirements?
If the organization has no employees in California, has it implemented COVID-19 prevention and response procedures?
Where Can I Go For More Information?
- California OSHSB, COVID-19 Prevention Non-Emergency Regulation web portal
- Cal/OSHA, COVID-19 webpage
- OSHA, Coronavirus disease (COVID-19) webpage
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: firstname.lastname@example.org