On February 3, 2023, California’s Office of Administrative Law approved Cal/OSHA’s COVID-19 Non-Emergency Regulation (NER). The NER is now the operative COVID-19 regulation for most California employers.
Overall, the NER is somewhat less burdensome for employers than the prior Cal/OSHA Emergency Temporary Standard (“3rd Revised ETS”):
- Does not require employers to provide exclusion pay to employees who are excluded from work due to having COVID-19 or other defined circumstances in the regulation.
- Eliminates an employer’s obligation to provide COVID-19 testing at no cost (and during paid time) for employees who are experiencing COVID-19 symptoms but did not have a close contact in the workplace (except during an “outbreak”).
- The definition of “close contact” from the emergency regulation will remain in place.
- The California Department of Public Health’s (CDPH) definition of “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”.
- Permits employers to exit from outbreak procedures when there is one or no new COVID-19 cases within a 14-day period (as opposed to zero new cases, as required under the 3rd Revised ETS).
- Aligns workplace COVID-19 notifications with the now amended Labor Code section 6409.6.
- Permits employers to address COVID-19 workplace control measures within their existing Injury and Illness Prevention Programs, as opposed to requiring a separate stand-alone COVID-19 Prevention Program with specific elements.
- Employers are required to keep records of COVID-19 cases and close contacts until February 3, 2026. These records must be provided to the local health department, CDPH, Cal/OSHA, or OSHA upon request.
- COVID-19 case records include employee’s name, contact information, occupation, and location(s) where employee worked, the date the employee last worked, and date of last positive COVID-19 test.
- Close contact records include employee’s name, contact information and date the close contact was provided notice.
- These records must be retained and kept confidential for two years.
- Employers must report major outbreaks (20 or more cases in an exposed group) to Cal/OSHA.
Cal/OSHA also issued FAQs, which repeat much of the information contain in previous iterations. https://www.dir.ca.gov/DOSH/Coronavirus/Covid-19-NE-Reg-FAQs.html
