Regulatory Update: California Employers Face COVID Rules Uncertainty

Due to a new state law and looming regulatory changes to existing rules, starting on Jan. 1, 2023, California’s employers must adhere to a new version of the state’s COVID-19 standards dictating how they handle coronavirus outbreaks among their workers.

To make matters confusing, a new state law was enacted last October that extends the general exposure notification requirement imposed on employers until Jan. 1, 2024. The earlier requirement had been slated to expire at the end of this year.

In a separate development, the state Division of Occupational Safety and Health (Cal/OSHA) earlier this year proposed a two-year “permanent” or “non-emergency” COVID standard that is intended to replace the Emergency Temporary Standards (ETS), an exhaustive list of requirements adopted by the state earlier in the pandemic.

The ETS has been revised several times since originally adopted, including earlier this year, and extended by the governor’s executive order, but is still scheduled to expire on Dec. 31. Cal/OSHA is expected to formally approve the permanent standards at a meeting scheduled for Dec. 15. However, much of what will be adopted is already known.

“Given the months-long planning process, we hoped we would see an orderly and seamless transition between expiration of the ETS (on Dec. 31, 2022) and the effective date of the non-emergency standard (Jan. 1, 2023). It now seems that may not be the case,” say attorneys Benjamin Ebbink and Abby Harrington Puztulu of the Fisher Phillips law firm.

Controversy has arisen over proposed removal of the ETS requirement that employers provide “exclusion pay” for employees who are absent from the workplace due to COVID infection or exposure (although other paid leave requirements may be available).

Currently, employers must continue employees’ earnings, seniority, rights and benefits when excluded from the workplace due to COVID exposure or illness contracted at work. Employers have to provide exclusion pay under the ETS before requiring employees to exhaust other forms of leave, like Supplemental Paid Sick Leave.

The new standard eliminates this provision. Instead, employers must only provide information to confirmed cases and close contacts about benefits they may be entitled to under local and federal law. Organized labor has steadfastly opposed the elimination of the exclusion pay standard.

At the last meeting of the Cal/OSHA Standards Board in October, four of the seven board members echoed the concerns of labor and essentially “demanded” that exclusion pay be added to the standard, Ebbink and Puztulu note. “It remains to be seen whether Cal/OSHA will respond by revising the language, but one way or the other, this continued debate and delay means that the board will not vote to adopt the non-emergency standard until their Dec. 15 meeting.”

After being approved by the Cal/OSHA board, the new standard still needs to be reviewed by the state’s Office of Administrative Law (OAL) and filed with the Secretary of State before it takes effect. Because of this, the ETS may remain in effect for employers beyond the end of the year.

There Is Good News

In all of this is some good news for employers, too, according to attorneys for the Seyfarth Shaw law firm. The new law significantly reduces the burden on employers by allowing an option for the notice of potential exposure to be posted at the worksite, or on an employee portal if other workplace notices are posted on the portal.

Just like the notice required under the current standards, it must be posted within one business day from when the employer learns of the COVID-19 case, and remain posted for at least 15 calendar days. Records of the written notices provided and a log of the dates when the notices were posted must be maintained for three years.

Employers still have the option of providing written notice to covered workers, and the employers of subcontracted workers, if they prefer. But employers will still be required to supply a written notice to the exclusive representative (union), if any, of the COVID-19 cases and any employees who had close contact.

The new version of the notice has been “streamlined,” according to the Seyfarth Shaw attorneys, but will still include the following:

• The dates on which an employee or employee of a subcontracted employer with a confirmed case of COVID-19 was on the worksite within the infectious period.

• The location of the exposures, including the department, floor, building or other area, but the location does not need to be so specific that it would allow individual workers to be identified.

Instead of detailed information, employers now only need to provide contact information for where employees can receive information regarding COVID-19-related benefits they are entitled to under federal, state or local laws, as well as antiretaliation and antidiscrimination protections of the employee. These benefits may include categories such as workers’ compensation, COVID-19-related local or emergency leave, company sick leave, state-mandated leave, recently extended COVID supplemental sick leave, or negotiated leave provisions.

As a best practice, the Seyfarth Shaw lawyers say companies should ensure human resources, safety or designated management personnel are prepared to provide this information on request and are familiar with local options for paid and unpaid leave.

Likewise, employers now only need to provide contact information about where employees may receive the cleaning and disinfection plan that the employer implements per the guidelines of the Centers for Disease Control and Prevention (CDC) and the Cal/OSHA standards.

Workplace cleaning and disinfection plans are not currently part of CDC guidelines or Cal/OSHA requirements, so many employers will likely refer to their normal cleaning and disinfection protocols that could be independent of COVID-19 mitigation measures.

Making ETS Permanent

Much of the ETS has carried over into the new proposed standard, but there are also some major changes that employers should be aware of, say the Seyfarth Shaw attorneys.

Instead of a single definition for close contact, the proposed standard distinguishes between two scenarios based on workplace size. (This new definition already applies because it was adopted by Cal/OSHA on Oct. 13, 2022.)

In indoor spaces of 400,000 cubic feet or less, a close contact results from sharing the same indoor space for 15 or more cumulative minutes within 24 hours during the infectious period. Six feet of distance does not matter. In indoor spaces of greater than 400,000 cubic feet, a close contact results from being within six feet of a COVID case for a cumulative total of 15 minutes or more within 24 hours.

“Importantly, each room with floor-to-ceiling walls makes up a distinct indoor space for purposes of this rule,” the lawyers point out. In these locations, workers who are wearing respirators during this time are not considered to be in close contact with those who are infected.

In fact, places where individuals momentarily pass through without congregating—whether or not they wear face coverings—are not considered to be exposed, which was not true under an earlier version of the new standards.

For symptomatic cases, the infectious period may end five days (down from 10 days) after the arrival of symptoms if the individual tests negative on that day and has not had a fever for over 24 hours without medication. For asymptomatic cases, the infectious period may also end five days after a positive test if a negative test is produced on the fifth day.

The ETS notice requirements also have been streamlined. Currently, employers must provide written notice to all employees present at a worksite during the infectious period of a COVID-19 case within one business day of when they learn of the case. The permanent standard includes similar notice requirements, but changes the time frame for notice to “as soon as possible.”

Reporting and recordkeeping requirements have changed to reflect increasing priorities on cases and large outbreaks, rather than exposures or isolated cases, the Seyfarth Shaw attorneys explain. Employers no longer must report information about workplace COVID-19 cases and outbreaks to their local health department. Also, while employers must keep a record of COVID cases for two years, they no longer have to keep records of close contacts.

“There’s still a lot that is up in the air for California employers,” say Ebbink and Puztulu. “Employers are waiting with bated breath to see if Cal/OSHA buckles to the pressure from labor groups and adds exclusion pay back into the mix.”

As a result, they recommend that employers keep their COVID protocols in place until the non-emergency regulation goes into effect. “Employers should continue to identify, evaluate and correct COVID-19 hazards in the workplace. This means that contract tracing, reporting outbreaks, individual notice requirements, and exclusion pay from the ETS may be here to a stay a little bit longer than we anticipated.”

The ETS will likely remain in effect into 2023 if only for procedural reasons, according to Ebbink and Puztulu. They advise, “California employers will need to be prepared to continue to comply with the ETS beyond the end of the year and be prepared to pivot to comply with the non-emergency regulation thereafter.”