California’s COVID-19 Workplace Requirements Continue to Evolve

In recent weeks, California state legislators and regulators have considered significant changes to the state’s COVID-19 requirements for workplaces. On September 29, Governor Newsom signed AB 2693 into law, extending but simplifying the statutory COVID-19 notice requirements. On September 15, Cal/OSHA agreed to substantially revise its proposal for a non-emergency regulatory standard for 2023 and beyond.

COVID-19 Notice Requirements Extended but Simplified

Since early 2021, California employers have been subject to extensive notice requirements for COVID-19 cases, as codified in Section 6409.6 of the California Labor Code. Those requirements were originally set to expire on January 1, 2023. Last week, Governor Newsom signed AB 2693 into law, which extends the notice requirements for one year and streamlines the requirements in several notable ways. California employers should be aware of the following changes, which will take effect starting January 1, 2023:

• Direct written notice is no longer required

Under the current law, employers must provide direct written notices to employees (and employers of subcontracted employees) who are on the premises at the same time as a confirmed COVID-19 case during their infectious period. Under the amended law, employers will have the alternative option to “prominently display” the notice in the workplace wherever notices regarding workplace rules or regulations are customarily posted. The notices must be posted within one business day of receiving notice of the positive case, remain posted for at least 15 days, and include:

• Dates and locations of confirmed COVID-19 cases at the workplace;
• Contact information for employees to receive information about COVID-19-related benefits to which the employee may be entitled; and
• Contact information for employees to receive the cleaning and disinfection plan that the employer will implement according to CDC and Cal/OSHA guidelines.

Employers may continue to provide direct written notice as an alternative to a displayed notice in the workplace. They must also keep a log of the dates that any such notices were posted.

• Outbreak reporting requirement eliminated

At this time, employers must notify the local health department when they are aware of positive cases that meet the California Department of Public Health’s definition of an “outbreak.” As amended, this requirement will be eliminated. Starting January 1, 2023, employers will no longer be required to report “outbreaks” to their local health departments.

• Current Law Remains in Place Until January 1, 2023

The prior law is set by statute to remain in effect until January 1, 2023. These amendments will not take effect until that date. As a result, employers should continue to comply with the existing notice requirements for the remainder of the year.

Cal/OSHA Will Revise the Proposed COVID-19 Permanent Standard

Given the expiration of Emergency Temporary Standard (ETS) expiration for COVID-19 Prevention on January 1, 2023, California’s Division of Occupational Safety and Health (Cal/OSHA) had proposed a non-emergency COVID-19 Prevention Regulation to replace the ETS for a two-year period. The Cal/OSHA Standards Board reviewed that proposal at its September 15 meeting. At the end of public comment at that meeting, most members of the Standards Board agreed that the proposed non-emergency standard should be revised to consider both labor and employer interests. The agency agreed to return to the drawing board and revise the proposed standard.

Cal/OSHA Standards Board members expressed concerns about three key components of the proposed non-emergency COVID-19 standard:

• Whether to incorporate exclusion pay (the benefit that entitles employees to their regular wages if they are excluded from the workplace due to a COVID-19 infection) in the permanent regulation. The proposed permanent standard did not incorporate exclusion pay. Opponents argued this could lead workers who do not receive sick leave to come into work while they are infectious out of financial necessity.
• Clarification of the definition of “close contacts” and the notification process for exposure. The proposed permanent standard would depart from the ETS’s proximity-bound definition of “close contact” (being within six feet of a COVID-19 case for 15 minutes or more over 24 hours during the case’s infectious period) and define “close contact” as “sharing the same indoor space” across that same time threshold.
• Whether two years is an appropriate duration for the rule, or whether it should be shorter.

As relevant to the notice requirements described above, the proposed non-emergency standard did not include any separate notice provisions but would have incorporated the requirements of Section 6409.6 and “any successor law.” Given the agency’s plan to revise the proposed standard, it is unclear whether employers will ultimately be required to comply with regulatory notice requirements separate from or beyond the provisions in the amended Section 6409.6.

The agency has not yet published a new proposal or a timeline for reviewing any such proposal. If eventually adopted, any new version will likely be effective on January 1, 2023, after the current ETS expires. It is therefore not yet clear what will be expected of employers after the ETS expires on January 1, or when employers will have certainty regarding the regulatory landscape in California.

Beveridge & Diamond’s Occupational Health & Safety practice assists clients with federal and state OSHA standards and regulations that govern worker health and safety. Our work includes overseeing compliance audits and risk assessments, reviewing company policies and procedures, conducting internal trainings, responding to information requests, and representing companies during workplace incidents, federal and state OSHA inspections, and related enforcement. With an office in California, our team includes lawyers with experience with Cal/OSHA regulations specifically. For more information, please contact the authors.