In the past two weeks, positive COVID-19 tests have increased to 18% in the U.S. Health and Human Services Agency’s Region 9, which includes California — and this particular surge is, as the Los Angeles Times reports, “surprisingly stronger [and] longer lasting than experts had expected.”
And although California’s COVID-19 State of Emergency proclamation ended in February 2023, special rules for employers still apply under the COVID-19 Prevention Non-Emergency Regulations, which are enforced by the California Division of Occupational Safety and Health (Cal/OSHA) and involve a wide range of rules including, but not limited to, testing, face covering, and quarantine and isolation.
To help employers navigate this new, enduring wave of COVID-19 infections, let’s take a refresher course on the COVID-19 non-emergency regulations.
Policies and Procedures
Employers who are not already covered by the Aerosol Transmissible Diseases standard must inspect for and address any hazards in the workplace to prevent COVID-19 infections among their workforce. The non-emergency regulations also have specific indoor air ventilation and filtration rules, and employers should review this guidance to assist with any ventilation or filtration changes.
Mitigation procedures may include any combination of administrative and engineering controls, such as an increase in remote work, physical distancing, a reduction of the number of people indoors and increased or improved ventilation or filtration of indoor air. The mitigation measures utilized by an employer depends upon the nature of its operations.
Any procedures developed for the prevention or mitigation of COVID-19 infections must be documented in a written COVID-19 Prevention Plan. This plan may be integrated as part of an employer’s already existing Injury and Illness Prevention Plan or may be a standalone document specific to only COVID-19 prevention.
Quarantine and Isolation
The non-emergency regulations require employers to exclude from the workplace any known, symptomatic COVID-19 case for their “infectious period,” which is defined as at least 24 hours from the onset of the symptoms until 24 hours have passed with no fever, and their symptoms are mild and improving.
Asymptomatic cases do not have an “infectious period” and don’t have to be excluded from work.
Whether an employee is a “close contact” with an infected coworker depends upon the workspace. In indoor spaces with 400,000 or fewer cubic feet per floor, the employee will be a close contact if they spend 15 cumulative minutes in the same airspace as the infected coworker during their “infectious period.” In larger indoor spaces, the close contact must be within six feet of the infected coworker during that coworker’s “infectious period.”
Although employers don’t need to exclude “close contacts,” they must notify them without divulging the name of the infected coworker, as well as meet other requirements (see below).
Testing
The non-emergency regulations require employers to offer testing at no cost and during paid work time to all “close contacts.” In addition, although much more rare, employers must offer testing to all other employees within an exposed group — all employees at a work location, working area or common area at work subject to very few narrow exceptions — during an outbreak or major outbreak.
During an outbreak (three cases in an exposed group during a seven-day period) employers must offer testing at no cost and during paid work hours once a week until the outbreak ends.
During a major outbreak (20 cases in an exposed group during a 30-day period) employers must offer testing at no cost and during work hours twice a week.
Employers don’t have to offer testing to employees who have returned to work after an infection within 30 days from either the onset of symptoms or, if asymptomatic, the date of a positive test.
An employer complies with this standard as long as it is offered at no cost and during work hours, even if the employee declines to take the test.
Face Coverings
There are no current general industry face covering requirements; however, an employee returning to work from a COVID-19 infection must wear a face covering as follows:
• Symptomatic cases must wear face coverings at the worksite until 10 days have passed since the onset of symptoms; or
• Asymptomatic cases must wear face coverings at the worksite until 10 days have passed since the date of their first positive COVID-19 test.
Employees in the “exposed group” during an outbreak or major outbreak must also wear face coverings until the outbreak or major outbreak ends.
Employers also may institute their own requirement for face coverings at the workplace, allowing for accommodations where reasonable (if, for example, someone with a disability is unable to wear a face covering).
Employers must allow an employee to voluntarily wear a face covering when not otherwise required as long as the face covering doesn’t interfere with the safe performance of their job duties. If the employee requests a respirator, such as an N95 mask, employers must provide one of the correct size along with instructions of its use.
The Future
As recent history shows, COVID-19 infection rates appear to be cyclical, so while the present spike may subside, future spikes may arise. The specific rules under the COVID-19 Prevention Non-Emergency Regulations are in effect until February 3, 2025, and employers should continue to ensure compliance and stay up-to-date on any changes by utilizing Cal/OSHA’s resources.
