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February 06, 2023
California nonemergency COVID-19 rules take effect

California’s nonemergency COVID-19 prevention regulations (California Code of Regulations Title 8 sections 3205 through 3205.3) took effect February 3 following approval by the state’s Office of Administrative Law. The new regulations, which take the place of the state’s emergency temporary standards (ETSs), remain in effect through February 3, 2025, and recordkeeping provisions of the rules remain in effect through February 3, 2026.

Under the nonemergency rules, California employers must maintain a written prevention program that addresses COVID-19 as a workplace hazard and includes employee training, measures to prevent workplace transmission, and methods for responding to COVID-19 cases in the workplace.

Plan measures may be addressed within an employer’s written injury and illness prevention program (IIPP) or in a separate document. Employers are legally obligated to provide and maintain a safe and healthful workplace, including preventing COVID-19 exposure.

The regulations include a requirement for employer-paid COVID-19 testing, and employers must make COVID-19 testing available to all employees, regardless of vaccination status, at no cost and during employees’ paid time for those who have had close contact in the workplace but are not COVID cases themselves.

The COVID-19 prevention regulations also incorporate definitions for “close contact” and “infectious period,” which were established in the California Department of Public Health’s (CDPH) State Public Health Officer order.

“Close contact” is determined by the size of the workplace:

  • For indoor spaces of 400,000 or less cubic feet per floor, close contact is defined as sharing the same indoor airspace 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 (as defined in the State Public Health Officer order), regardless of the use of face coverings.
  • For indoor spaces larger than 400,000 cubic feet per floor, close contact is defined as being within 6 feet of the 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, regardless of the use of face coverings.
  • Bathrooms and break or eating areas; offices, rooms, and suites; waiting areas; or other spaces that are separated by floor-to-ceiling walls are considered distinct indoor spaces.

The infectious period currently is defined as “2 days before an infected, symptomatic 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.”

Employers also must review applicable CDPH guidance for indoor locations and implement effective measures to prevent transmission through improved filtration and/or ventilation.

The California Division of Occupational Safety and Health (Cal/OSHA) has provided employer resources that include answers to frequently asked questions and a COVID-19 model prevention program (available for Microsoft® Word).

Exceptions to the rules include:

  • Work locations where there is only one employee who does not have contact with other people;
  • Employees who are working from home;
  • Employees working from a location chosen by the employees that is not under the employer's control (for example, an employee teleworking from a café or a friend's home); and
  • Employees who are covered by the aerosol transmissible diseases (ATD) standard.

California’s permanent ATD standard applies to correctional facilities, emergency services, and healthcare facilities.

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