By: Robert Moutrie
After years of rapid change – the potentially final form of California’s COVID-19 regulation has been filed with the Secretary of State and goes into effect February 3, 2023.
On December 15, 2022, the Cal/OSHA Standards Board voted to transition the state’s COVID-19 regulation from a short-term, “emergency” regulation (also known as an “ETS”) to a non-emergency, 2-year regulation. The final approved text (available here: https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Non-Emergency-txtbrdconsider.pdf) made various changes to the regulation, and had a sunset of December 31, 2024 for most provisions.
However, there was some confusion as to when exactly it would go into effect after the vote. The answer was: “sometime in the next 30 working days, whenever the Office of Administrative Law (OAL) finished reviewing it and approved it …” That answer wasn’t exactly helpful for California’s workplace-safety concerned individuals (both labor and management) as we wanted to know exactly when the new rules would go into effect. Sadly, there wasn’t any better way to know than to steadily re-check OAL’s website until we saw the COVID regulation move from “Proposed Regulations Under Review” to “Recent Actions Taken…” Thankfully, their website is pretty easy to use – and it has finally happened!
On Friday February 3rd, the OAL finished their approval, meaning the new COVID-19 non-emergency regulation text is in effect. The changes in the new draft were significant in some areas, including:
– Outbreaks can be ended slightly sooner than under the prior text, which required 0 cases for a two-week period. Now, a workplace can have 1 case in a two-week period, and still consider the outbreak ended.
– Exclusion pay would no longer be required under the regulation, but workers would still be able to seek compensation under workers’ compensation, as well as under normal sick leave law.
– The new definition of “close contact” is firmly in the text – so workplaces should measure whether they are larger or smaller than 400,000 cubic feet to determine who qualifies as a close contact.
I’ve gotten a lot of questions on the soon-to-end State of Emergency (due to end February 28th, per Governor’s press release, available here) … so I want to be very clear: the State of Emergency ending has no effect on the regulation’s legal authority, or substantive requirements. Yes, I understand the common-sense response of: “… but shouldn’t the state of emergency change things? And shouldn’t its end change things?” And yes, states of emergency do change things – including allowing the Governor broader powers to act quickly or use funds differently – but, sadly, the state emergency ending does not change employers’ COVID obligations under Cal/OSHA’s regulation. We still have to comply for the next two years.
If you’re looking for a small silver lining, here’s one: this text will remain in effect until December of 2024, I expect minimal changes between now and then. Cal/OSHA Standards Board Members and staff both seem focused on catching up on the workload that existed pre-pandemic – so I’m hopeful that this will be the last significant change on the state’s COVID-19 regulation for a long time … or, at least, two years!