During a meeting of the Cal/OSHA Standards Board on November 17, 2022, Cal/OSHA’s Chief Deputy for Health and Research Standards unequivocally stated that no further modifications will be made to the proposed non-emergency COVID regulation (CA Non-Emergency Regulation) that the Board will vote to approve at its next meeting on December 15, 2022. The new regulation will become effective beginning January 1, 2023, immediately upon the expiration of the current COVID Emergency Temporary Standard (3rd Revised ETS), and will remain in effect through December 31, 2024.

The announcement brings to an end uncertainty that has lingered for months after the initial publication of a proposed non-emergency regulation, during which both management and labor representatives have repeatedly expressed multiple conflicting concerns, and which partly prompted Cal/OSHA to issue a modified proposal in mid-October 2022.

Employers may now take steps to prepare for compliance with the non-emergency regulation without wondering whether the provisions will change yet again.

Overall, the Non-Emergency Regulation is relatively less burdensome for employers than the current CA ETS. For example, the final proposed CA Non-Emergency Regulation:

  • Does not contain the 3rd Revised ETS’ provisions requiring employers to provide exclusion pay to employees who are required by the regulation to be excluded from work due to having COVID or other defined circumstances in the regulation.
  • Eliminates an employer’s obligation to provide COVID testing at no cost (and during paid time) for employees who are experiencing COVID symptoms but did not have a close contact in the workplace.
  • Permits employers to address COVID workplace measures within their existing Injury and Illness Prevention Plans (IIPPs), as opposed to requiring a separate self-standing COVID plan.
  • Permits employers to exit from outbreak procedures when there is one or no new COVID-19 cases within a 14-day period (as opposed to zero new cases, as under the current CA ETS).

Other aspect of the Non-Emergency Regulation, including its definition of close contact (based on the most recent California Department of Public Health Order), are addressed in our previous publications linked above.

The Non-Emergency Regulation is slightly more rigorous regarding ventilation. It will require employers to either maximize the supply of outside air, employ the highest level of filtration efficiency compatible with existing mechanical ventilation systems, and/or use HEPA filtration units.

In sum, Cal/OSHA’s announcement that no further modifications will occur before the December 15, 2022 vote permits employers to now consider their specific plans to prepare for compliance before the Non-Emergency Regulation becomes effective on January 1, 2023. California employers should consult with their employment counsel regarding their own workplace safety plans.