As the end of the year draws near, it is important for employers in California to remember there are multiple COVID-19 regulations and laws that will still apply to the workplace in 2023. The Division of Occupational Safety and Health of California’s (“Cal/OSHA”) constantly evolving COVID-19 Emergency Temporary Standard (“ETS”) that has been in effect for the last two years is finally expiring. However, the ETS will be replaced by Cal/OSHA’s new COVID-19 Prevention Non-Emergency Regulations (“Permanent Standard”), which will remain in effect through 2024. This article provides a comprehensive update on the Permanent Standard, AB 2693 (the new law modifying an employer’s notification and reporting requirements under Labor Code section 6409.6), and the current state of COVID-19 Supplemental Paid Sick Leave.
Cal/OSHA’s New COVID-19 Permanent Standard
Cal/OSHA first published a draft of the proposed Permanent Standard on June 18, 2022. Unlike the ETS and its various iterations, the Permanent Standard is a non-emergency regulation and therefore was required to proceed through the standard rulemaking process, which includes a public hearing on the proposed regulation. In advance of the public hearing on September 15, 2022, we reviewed some of the main differences between the ETS and the proposed Permanent Standard in a prior blog post. At the public hearing, employers and labor representatives voiced their concerns over the Permanent Standard, which we detailed here. Following minor non-substantive revisions, the Occupational Safety and Health Standards Board (“Board”) voted to adopt the proposed Permanent Standard on December 15, 2022. The Permanent Standard will become effective once approved by the Office of Administrative Law in January (this could happen as early as January 1, 2023) and will remain in effect for two years after the effective date.
As a brief refresher, the Permanent Standard eliminated or relaxed the following requirements under the current ETS:
- Employee Screening: Employers are no longer required to develop and implement a process for screening employees for COVID-19 symptoms (such as a temperature check or symptom questionnaire). The Permanent Standard simply states that employers must (1) effectively identify and respond to persons with COVID-19 symptoms at the workplace and (2) encourage employees to report COVID-19 symptoms and to stay home when ill.
- Exclusion Pay: The Permanent Standard eliminated the requirement for employers to maintain an employee’s earnings and benefits when the employee must be excluded from the workplace under the Permanent Standard. Instead, the Permanent Standard requires only that employers provide employees with information regarding (1) COVID-19 related benefits they may be entitled to under federal, state, or local laws, (2) the employer’s leave policies, or (3) any leave guaranteed by contract.
- Employer-Provided Testing: Employers no longer need to make testing available to any employee experiencing COVID-19 symptoms. Under the Permanent Standard, employers must make testing available only to employees who had a close contact in the workplace and as required under outbreak protocols.
- Outbreak Protocols: Under the ETS, employers had to follow certain outbreak protocols if there are three or more COVID-19 cases in an exposed group at a work location during the cases’ infectious period, over a 14-day period. The Permanent Standard modified the definition of “exposed group” to eliminate employees who momentarily pass through the work location (previously only masked employees passing through were eliminated). Additionally, outbreak protocols can now cease if there have been one or fewer cases in the exposed group within the preceding 14 days (unlike the ETS which required no new cases during the lookback period). Notably, however, employers must now report major outbreaks (20 or more cases over a 30-day period) to Cal/OSHA, which is likely to result in a subsequent Cal/OSHA investigation.
- Employee Notifications: The Permanent Standard modified notification requirements for employees who were potentially exposed in the workplace. The notice must be provided “as soon as possible” and defers to Labor Code section 6409.6 (detailed below) on the form and content of the notice. Separately, the Permanent Standard requires employers to notify employees and independent contractors who had a close contact, as well as any employer with an employee who had a close contact, “as soon as possible,” and in no case longer than the time required to meet the exclusion requirements under the Permanent Standard.
The ETS required employers to maintain a standalone COVID-19 Prevention Plan (“CPP”). Under the Permanent Standard, employers now have the option of either identifying their COVID-19 procedures that address COVID-19 as a workplace hazard in their written Injury and Illness Prevention Program (“IIPP”) or keeping them in a separate document. Employers should note that although certain requirements under the ETS, including performing a COVID-19 hazard assessment, providing COVID-19 training, investigating workplace exposures, and taking corrective action, are not expressly required under the Permanent Standard, they are still required pursuant to Cal/OSHA’s IIPP regulation.
Changes to Employee Notification and Reporting Requirements
On September 29, 2022, Governor Newsom signed Assembly Bill (“AB”) 2693 into law. AB 2693 amends the COVID-19 notification and reporting requirements in California Labor Code section 6409.6. Under AB 2693, the notification requirement (detailed below) is now less burdensome on employers. Additionally, AB 2693 eliminates the requirement under section 6409.6 that employers notify the local public health agency within 48 hours of an outbreak. Although employers separately may be required by local public health agencies to report an outbreak, there will no longer be a mandatory statewide outbreak reporting requirement. The changes under AB 2693 take effect on January 1, 2023, and will expire on January 1, 2024.
Under the current version of section 6409.6, employers must provide within one business day a written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the “qualifying individual” within the infectious period that they may have been exposed to COVID-19. Starting January 1, 2023, employers will have the alternative option of posting a notice of a potential COVID-19 exposure in the workplace as opposed to providing all employees a written notice. If the employer chooses to use a posted notice, it must be posted in all places where notices to employees concerning workplace rules or regulations are customarily posted, including any existing online employee portal, and must contain the following information:
- The date that the confirmed COVID-19 case was last at the worksite.
- The location of the potential exposures including the department, floor, building, or other area.
- Contact information where employees can find resources on COVID-19-related benefits that the employee may be entitled.
- Contact information where employees can find resources related to the employer’s plan for cleaning and disinfecting. Notably, the ETS and Permanent Standard no longer require workplace cleaning and disinfection protocols, so employers can refer to their general cleaning and/or disinfection protocols.
The notice must (1) be posted within one business day from when the employer receives notice of potential exposure, (2) remain posted for no less than 15 calendar days, and (3) be displayed in English and any other language spoken by the majority of employees. Employers should note that the requirement to post within one business day is stricter than the Permanent Standard’s notification requirement listed above and employers who chose to provide notice by posting should therefore adhere to the one day requirement. Records of the posted notices and a log of the dates when the notices were posted must be maintained for 3 years.
Employers may continue to satisfy the notification requirements under section 6409.6 by providing a written notice to all potentially exposed employees or employees of subcontracted employers. The written notice can be circulated by, but is not limited to, personal service, email, or text message, and must appear in English and any other language understood by the majority of employees. Although the written notice does not appear to require the specific information outlined above, employers should include the same details required for the posted notice in the written notice and the same recordkeeping requirements apply to written notices as well. Notably, the amendments to section 6409.6 do not mention independent contractors. Thus, to satisfy the notification requirements under both amended section 6409.6 and the Permanent Standard, employers should ensure they also notify any independent contractors (or their employers) at the worksite of any potential exposure.
2021 COVID-19 Supplemental Paid Sick Leave
On September 30, 2022, Governor Newsom signed into law Assembly Bill (“AB”) 152, which extended 2022 COVID-19 Supplemental Paid Sick Leave (“CSPSL”) through December 31, 2022. As of right now, there is no proposed legislation to establish a new CSPSL for 2023. On October 17, 2022, Governor Newsom announced that the state’s COVID-19 State of Emergency will end on February 28, 2023. The announcement stated that the February deadline will allow the health care system needed flexibility to handle any potential surge that may occur after the holidays in January and February and will give state and local partners the time needed to prepare for the phaseout.
Notably, employers in certain jurisdictions may still need to provide local supplemental paid sick leave (“LSPSL”) in early 2023. The LSPSL ordinances for the cities of Oakland and Los Angeles and the unincorporated county of Los Angeles will expire two weeks after the “COVID-19 local emergency” expires, which is separate from the statewide State of Emergency. The City of Los Angeles has announced it will lift its local state of emergency on February 1, 2023, resulting in its LSPSL expiring on February 15, 2023. However, Oakland and Los Angeles County have yet to announce when they will lift their local emergency. The City of Long Beach also has an LSPSL, but its expiration date is determined by the Long Beach City Council. Employers with San Francisco-based employees also must continue to provide Public Health Emergency Leave, which we previously discussed at-length here.
As 2022 comes to an end, employers should review the new COVID-19 regulations and laws and revise their IIPPs/CPPs, employee notifications, and COVID-19 sick pay policies accordingly. Employers with any questions or concerns should consult with experienced employment counsel to ensure they remain compliant.
The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.