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December 02, 2022
California COVID-19 ETS set to expire, 'nonemergency' rule in the works

With California’s COVID-19 emergency temporary standard (ETS) set to expire at the end of the year, the state Occupational Safety and Health Standards Board is considering a “nonemergency” regulation. The standards board meets at 10 a.m. on December 15 but has no public hearing items on its agenda.

The rule’s requirements for employer safeguards would remain in effect for 2 years. The nonemergency rule’s recordkeeping and reporting requirements would remain in effect for 3 years.

Virginia was the first state to adopt an ETS to address workplace COVID-19 hazards. California, along with Michigan and Oregon, also adopted emergency COVID-19 rules in the first year of the pandemic.

California first adopted its emergency rules in November 2020. The board adopted separate emergency standards for COVID-19 prevention, multiple COVID-19 infections and COVID-19 outbreaks, major COVID-19 outbreaks, prevention in employer-provided housing, and prevention in employer-provided transportation.

Under California administrative law, emergency standards remain in effect for 180 days. The board may twice readopt temporary standards for an additional 90-day period each.

Governor Gavin Newsom (D) issued a waiver on December 16, 2021, authorizing the standards board to consider a third readoption of the rules.

The standards board has now revised and readopted the emergency rules three times.

The state’s current set of emergency rules was authorized by the governor’s December 2021 order.

The most significant change in the nonemergency rule would be that employers must consider all persons potentially infectious, regardless of symptoms, vaccination status, or negative COVID-19 test results, when developing and implementing prevention measures for their workforce.

Employers would be required to develop written COVID-19 prevention plans either as part of their injury and illness prevention plans or in a separate document. COVID-19 prevention plans would need to include:

  • Procedures for handling a workplace COVID-19 case;
  • Procedures for notifying employees and independent contractors who have had close contact with a COVID-19 case;
  • Providing face coverings when required by a California Department of Public Health’s (CDPH) order or regulation;
  • Providing respirators upon request;
  • Maintaining ventilation either by maximizing the supply of outdoor air, filtering circulated air with Minimum Efficiency Reporting Value (MERV)-13 filters or the highest level of filtration compatible with building systems, or using portable high-efficiency particulate air (HEPA) filtration units; and
  • Keeping records of all workplace COVID-19 cases and providing case information upon request to the CDPH, the California Division of Occupational Safety and Health (Cal/OSHA), the local health department, or the National Institute for Occupational Safety and Health (NIOSH).

The proposed nonemergency regulation also would adopt definitions for “close contact” and “infectious period” put out on October 14 in the CDPH’s State Public Health Officer Order. A close contact is defined as “sharing the same indoor airspace” in indoor spaces 400,000 cubic feet or less per floor “… for a cumulative total of 15 minutes or more over a 24-hour period … during an infected person’s infectious period” as confirmed by a COVID-19 test or clinical diagnosis. The infectious period is defined as “2 days before the infected person had any symptoms through day 10 after symptoms first appeared … and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved” or “2 days before the positive specimen collection date” (for asymptomatic infected persons) “through day 10 after … specimen collection for their first positive COVID-19 test.”

However, even if the standards board adopts the CDPH’s current definitions, the nonemergency regulation could be preempted by subsequent CDPH public health orders.

There currently is no federal COVID-19 or airborne transmissible disease standard. The U.S. Occupational Safety and Health Administration’s (OSHA) vaccine-or-test ETS was permanently stayed on January 13 by the U.S. Supreme Court.

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