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

On September 15, 2022, the California Occupational Safety and
Health Standards Board (“Board”) will hold a public hearing to address its draft proposed COVID-19 Permanent Standard
(“Permanent Standard”).¹ At the hearing, the
Board will hear comments from the public in favor of adopting,
amending, or repealing the Permanent Standard. The good news for
employers who are tired of revising their COVID-19 policies is that
the Permanent Standard largely tracks with the protocols already
required under the current COVID-19 Emergency Temporary Standards
(“ETS”). Additionally, the Permanent Standard eliminates
or reduces some of the costly requirements under the current ETS.
The bad news, however, is that it appears COVID-19 protocols are
here to stay for the near future and California employers will need
to continue to remain in compliance with the state’s COVID-19
regulations and enforce them in the workplace.

Background

To date, the California Division of Occupational Safety and
Health (“Cal/OSHA”) has adopted four iterations of the
ETS, which is codified in California Code of Regulations, Title 8,
Section 3205 et seq. The original ETS was adopted November 19, 2020,
and became effective on November 30, 2020. The current ETS is the fourth iteration, which
became effective on May 5, 2022, and remains in effect until
December 31, 2022. On June 18, 2022, Cal/OSHA published its
proposed language 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 become effective
January 1, 2023, and remain in effect until December 31, 2024.

Differences Between the ETS and the Permanent Standard

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

Although the requirements under the Permanent Standard are
largely similar to the current ETS, there are a few important
changes that will likely be the primary discussion points at the
hearing. Addressed below are six changes that will likely receive
the bulk of the attention due to their impact on employers and
employees alike.

Reduced Requirements for Employers:

1. Elimination of Exclusion Pay:

Employers are no longer required to provide exclusion pay to
employees excluded from the workplace due to COVID-19. This change
will hopefully 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 to both employers and employees, this will
likely be a hotly contested topic at the September 15, 2022,
hearing.

2. Employer-Provided Testing:

The Permanent Standard eliminates the requirement that employers
make COVID-19 testing available to employees who are a close
contact outside of the workplace and/or
who experience 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, still at no cost and during paid time, to
employees who are a close contact within the
workplace.

3. “Relaxed” Notice Requirement:

While the prior iterations of the ETS call 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 possible.” In theory, this might
give employers slightly more breathing room to respond to
information regarding a positive COVID-19 case. In practice, this
change has little effect, if any. Labor Code section 6409.6 still
requires that notice be given within one business day and although
this section of the Labor Code is set to expire at the end of this
year, pending legislation would extend its enforcement until
January 1, 2025.

Added Requirements for Employers:

1. New Definition of “Close
Contact”:

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

2. Reporting of Cases and Close Contacts:

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

3.Respiratory Protection for Aerosol
Producers:

The Permanent Standard will require certain employers to
evaluate the need for respiratory protection for employees who are
exposed to procedures that may aerosolize potentially infectious
materials, such as saliva or respiratory tract fluid carrying
COVID-19. This requirement will apply to employees in work settings
that are not covered by the Aerosol Transmissible Diseases
(“ATD”) standard (California Code of Regulations, title
8, section 5199), which contains specific requirements for
protecting employees from diseases and pathogens transmitted by
aerosols. Examples of work settings that this requirement may
affect include certain dental procedures and certain outpatient
medical specialties.

Conclusion

Although the Board still can modify the proposed language in the
Permanent Standard, it seems unlikely that any of the proposed
requirements will change. Employers who wish to submit written
comments may do so until 5:00 p.m. on the day of the hearing on
September 15, 2022. Sheppard Mullin will continue to closely
monitor any important employment developments related to COVID-19,
including the upcoming hearing and any changes to the Permanent
Standard. Employers with any questions or concerns about the
Permanent Standard or the current ETS should consult with
experienced employment counsel to ensure they are compliant with
the evolving regulations and guidance.

The legal landscape continues to evolve quickly and there is a
lack of clear-cut authority or bright line rules on implementation.
This article is not intended to be an unequivocal, one-size fits
all guidance, but instead represents our interpretation of where
applicable law currently and generally stands. This article does
not address the potential impacts of the numerous other local,
state and federal orders that have been issued in response to the
COVID-19 pandemic, including, without limitation, potential
liability should an employee become ill, requirements regarding
family leave, sick pay and other issues.

Footnote

1. You can access 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 to the subject matter. Specialist advice should be sought
about your specific circumstances.