In addition to compliance with the nonemergency COVID-19 prevention regulations, employers must continue to notify employees of COVID-19 exposures.
On February 28, 2023, the COVID-19 state of emergency officially comes to an end in California. The “SMARTER Plan” is the next phase of California’s COVID-19 response. So what’s next for California employers?
Nonemergency COVID-19 Prevention Regulations Remain in Effect
The new nonemergency COVID-19 prevention regulations―adopted by the California Occupational Safety and Health Standards Board and effective February 3, 2023―remain in effect for the next two years, with reporting obligations in effect for the next three. The new regulations incorporated some requirements of the older Cal/OSHA emergency temporary standards and added new provisions designed to be easier and more flexible for employers.
All employers, employees and places of employment must continue to comply with the nonemergency regulations except for work locations where there is only one employee who does not have contact with other people, employees working from home, employees working from a location chosen by the employee not under the control of the employer, and those covered by the existing aerosol transmissible diseases regulation for high-risk workplaces like healthcare facilities. Under the regulations, employers are required to:
- Provide face coverings to employees upon request and ensure they are worn by employees when the California Department of Public Health requires their use;
- Report information about employee deaths, serious injuries and serious occupational illnesses to Cal/OSHA in accordance with existing regulations;
- Make COVID-19 testing available at no cost and during paid time to employees following a “close contact.” For indoor air spaces under 400,000 cubic feet, a “close contact” is now defined as sharing the same indoor air 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. For indoor air spaces of greater than 400,000 cubic feet, “close contact” is defined as being within 6 feet of 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.
- Exclude COVID-19 cases from the workplace until they are no longer an infection risk;
- Implement policies to prevent transmission after close contact;
- Develop, implement and maintain effective methods to prevent COVID-19 by improving ventilation pursuant to state public health department and Cal/OSHA guidance regarding ventilation.
- Address COVID-19 as a workplace hazard under the requirements of an injury and illness prevention program or in a separate document, which provides for training, face coverings, identifying health hazards, developing methods to prevent transmission, investigating and responding, making testing available, notifying affected employees, maintaining records and promptly reporting when required. A model of COVID-19 prevention procedures is now available for employers to use.
- Provide information regarding COVID-19-related benefits that employees may be entitled to under federal, state or local laws, employer leave policies or leave guaranteed by contract; and
- Report major outbreaks (20 or more positive cases in a rolling 30-day period) to Cal/OSHA.
Employers are no longer required to:
- Maintain a standalone COVID-19 prevention plan, as the new injury and illness prevention program or similar document replaces it;
- Report positive cases or outbreaks to local public health authorities; or
- Pay employees while they are excluded from work, although employees may still use any available paid sick, PTO or vacation time. California’s supplemental paid sick leave law expired at the end of 2022, and no other legislation has been enacted to replace it.
Continued Notification to Employees of Exposures
In addition to compliance with the nonemergency COVID-19 prevention regulations, employers must continue to notify employees of COVID-19 exposures. However, the method of notification has been made easier. AB 685, which required employers to quickly notify employees and employers of subcontracted employees of COVID-19 exposures within one business day and to notify public health officials of outbreaks in the workplace, expired at the end of 2022. (See our prior Alert.) It was replaced by AB 2693, which allows employers to satisfy the employee notification requirement by prominently displaying a notice in all places where notices to employees concerning workplace rules or regulations are customarily posted. If employers choose to post notices of exposure, they must include the dates on which an employee with a confirmed case of COVID-19 was on the worksite premises within the infectious period and the location of the exposure. Notices must remain posted for 15 days. Employers must also keep a log of all the dates notices were posted and allow the state Labor Commissioner to access those records.
AB 2693 also repealed the requirement that employers report COVID-19 outbreaks (three or more cases at a single worksite in a rolling 14-day period) to public health officials within 24 hours. Instead, major outbreaks must be reported to Cal/OSHA. AB 2693 will remain in effect until January 1, 2024.
Workers’ Compensation Presumptions Remain in Effect
Since September 2020, existing law has created a rebuttable presumption that an employee’s case of COVID-19 was contracted in the workplace for purposes of workers’ compensation coverage if a certain threshold of employees have contracted COVID-19 in a rolling 14-day period based on the size of the workplace. (See our prior Alert.) This law remains in effect until January 1, 2024.
What This Means for Employers
COVID-19 may no longer be considered an emergency, but it remains a source of regulation for California employers. While day-to-day operations may have returned to pre-pandemic norms, employer obligations related to COVID-19 remain. Employers must create prevention programs, provide face coverings, monitor exposures and outbreaks, notify employees of exposure, pay for testing and report to Cal/OSHA. Although it may be tempting for employers to fall back into their 2019 ways, employers are encouraged to stay current, keep an eye on California Department of Public Health updates and upticks in the spread of COVID-19 in their communities, continue to store face coverings, update their notification procedures and be ready to promptly react when COVID-19 cases occur at work.
For More Information
If you have any questions about this Alert, please contact Lori Ocheltree, Brooke B. Tabshouri, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.