After years of rapid change, the potentially final form of California’s COVID-19 regulation has been filed with the Secretary of State and went into effect on February 3.
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, two-year regulation.
The final approved text (available at www.dir.ca.gov) made various changes to the regulation, and has a sunset of February 3, 2025 for most provisions.
After the December vote, there was some confusion as to exactly when the non-emergency rule would go into effect. The answer was: “sometime in the next 30 working days, whenever the Office of Administrative Law (OAL) finishes reviewing it and approves 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 finally happened!
On Friday, February 3, 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 will no longer be required under the regulation, but workers still will 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.
Employers should be aware that the State of Emergency is due to end February 28, per the Governor’s October 2022 press release, available here. To be very clear: the State of Emergency ending has no effect on the regulation’s legal authority, or substantive requirements.
The commonsense response is: “… 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. They still have to comply for the next two years.
Text in Effect Until 2025
If you’re looking for a small silver lining, here’s one: this text will remain in effect until February 3, 2025. Minimal changes are expected 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 employers are 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!