New COVID Rules Adopted

It seemed a foregone conclusion that the Cal/OSHA Standards Board would adopt the non-emergency version of the COVID prevention standard. And it was.

But at this week’s Board meeting, stakeholders from management and labor staked their positions both for how the new regulation will proceed and how the coming permanent airborne infectious disease standard for general industry will look.

DOSH Chief Jeff Killip “It is imperative to keep key worker protections in place…”

The Board, as expected, approved the standard in a 6-1 vote. Management representative Kathleen Crawford voted no, and other members voted yes but took their time deciding on their ultimate vote. “We’ll be smarter next time,” Board Chair David Thomas commented, referring to the permanent standard.

He acknowledged the criticisms of the proposal but added, “What we have here is probably the most workable … document we have to protect ourselves.”

Division of Occupational Safety and Health Chief Jeff Killip said the regulation makes a “vast improvement in Cal/OSHA’s ability to protect workers, especially in high-risk occupations.” He added that “general requirements,” namely, the Injury and Illness Prevention Program, which employer representatives insist is a better alternative to prescriptive requirements to control COVID, “were substantially less protective than the emergency regulations. It is imperative to keep key worker protections in place as COVID and its continuously emerging variants continue to be a serious occupational and community hazard.”

California’s Office of Administrative Law has 30 days to approve the non-emergency regulation, meaning there is a chance that it will not be finalized by the first of the new year. DOSH Deputy Chief for Health Eric Berg said the current ETS will be in place until the effective date of the latest version.

Just Vote No 

Rob Moutrie, Cal Chamber “Now is the moment to end this.”

Employer representatives urged the Board to reject the non-emergency standard, although they realized the effort was futile. Rob Moutrie, legislative advocate for the California Chamber of Commerce, noted, “We have better scientific understanding of the virus than we ever had. Now is the moment to end this.”

Helen Cleary, director of the Phylmar Regulatory Roundtable, echoed those sentiments. “It’s not because we believe COVID is gone or that it is not a concern. It’s not because we have fatigue or we’re just tired of complying.”

She argues that safety professionals are “losing credibility because the requirements do not align with the community.” Cleary adds, “When nonsensical rules are established, employees become less motivated to follow any rules. We’re very concerned that enforcing this rule for two more years is going to chip away at the influence that EHS professionals have built up … throughout this pandemic.”

Cassie Hilaski, safety manager for San Francisco’s Nibbi Brothers Construction, zeroed in on a particular complaint regarding the proposal: the new definition of “close contact,” which is aligned with the California Department of Public Health. Employees in spaces under 400,000 cubic feet per floor are considered a close contact if they share the same airspace with a COVID case for a cumulative 15 minutes over 24 hours.

Helen Cleary, Phylmar Regulatory Roundtable “the requirements do not align with the community”
For larger spaces, a contact is someone within six feet of a COVID case for the same period. “My ask of the board today is that the Division collaborate with CDPH to revert back to the original six-foot definition of close contact,” Hilaski said. “In our own experience, in the first two-and-a-half years of managing COVID cases, that definition has worked best.”

She echoed Cleary’s comments about the lingering effects of the COVID regulation. “Our employees don’t have a problem following the COVID protocols when they make sense,” Hilaski says. “They don’t like it, but they understand it. They get really upset when they need to wear face masks for 10 days simply because they were on the same floor as a COVID case. They actually see it as a punishment.”

Exclusion Pay, Coming Later?

On the other hand, labor still seethes about the decision to remove exclusion pay from the new regulation. “Some of these decisions come from above, not necessarily where you think,” Thomas commented.

Mitch Steiger, labor advocate for the California Labor Federation, called for exclusion pay to be included in the first draft of the permanent standard. His call was taken up by Standards Board occupational health rep Laura Stock, who asked for a formal motion. Thomas said such a move was too soon because it was separate from the official Board agenda but expect it early in 2023.

Highlights: COVID Non-Emergency Rule

Scope: Regulation sunsets after two years from effective date (likely January 1st, 2023). Applies to all employers and places of employment, except:

  •   Work locations with only one person and no contact with others;
  •   Employees working from home and teleworkers;
  •   Employees covered by the aerosol transmissible diseases standard (GISO §5199);
  •   State and local health department orders and guidance supersede the standard.

Key definition: “Close contact” now defined as:

  •   For spaces under 400,000 square feet, sharing the same airspace as a COVID case for a cumulative 15 minutes or more over a 24-hour period during the infectious period;
  •   For spaces more than 400,000 square feet, it is defined as being within six feet of a COVID case, for the same period. Both definitions are regardless of whether face coverings are used.

Application: COVID-19 is considered a workplace hazard and will be addressed under the Injury and Illness Prevention Program, either in the IIPP or as a standalone document. The non-emergency standard does not require a formal COVID Prevention Plan.

Employers are required to review applicable orders and guidance from state and local health departments with jurisdiction over the workplace. COVID shall be treated as an airborne infectious disease.

Employers are required to investigate, identify and respond to workplace COVID illnesses, and have effective methods for response, including:

Exclusion of infected employees, who shall not return to work during the shorter of the following periods:

  •   The infectious period;
  •   10 days after the onset of symptoms; or
  •   At least 24 hours have passed since a fever of 100.4ºF.

Employers shall review current guidance from the California Department of Public Health for employees who have had close contact, and develop effective policies to prevent transmission. Employers must make testing available at no cost for employees with close contact.

The standard does not include “exclusion” pay. If an employee is excluded because of COVID, the employer instead must give the employee information regarding COVID-related benefits available under federal, state or local laws.

Employers must notify employees and independent contractors who have had a close contact.

Employers must provide face coverings and ensure they are worn by employees when required by a CDPH regulation or order. Upon request of employees, employers shall provide respirators for voluntary use for those working indoors or in vehicles with more than one employee, in compliance with GISO §5144(c)(2). This means that fit-testing is not required, but the employer must ensure that it is safe for the employee to wear one.

The standard also includes specific requirements for workplace COVID outbreaks, which will apply until there are one or no new cases detected in the exposed group for a 14-day period.

The outbreak requirements include testing, use of face coverings (or respirator when requested) for those in the exposed group, investigations, review and corrective measures. Major outbreaks – 20 or more cases – have additional requirements.

The standard also includes COVID prevention procedures for employer-provided housing and transportation.

Click here to see the entire standard adopted by the Cal/OSHA Standards Board.