On December 15, 2022, the California Occupational Safety and Health Standards Board (“OSHSB”) promulgated new and permanent General Industry Safety Orders (“Permanent Standards”) addressing workplace health and safety issues related to COVID-19 (8 C.C.R. §§ 3205-3205.3). These Permanent Standards replace the Emergency Temporary Standards (“ETS”), which have governed employer responses to COVID-19 in the workplace for the last two (2) years.
The purpose of this bulletin is to summarize significant changes under the Permanent Standards so employers can revise their COVID-19 Prevention Programs (“CPPs”) and their health and safety practices to comply with the regulatory requirements. The changes discussed in this bulletin are limited to those provided for in Title 8, Section 3205 of the California Code of Regulations (“Section 3205”), which relate to CPPs, and not the other regulatory sections covered by the Permanent Standards, which are important, but less frequently implicated.
Liebert Cassidy Whitmore will be making available a Model CPP that addresses and accounts for all of the changes to Section 3205. Employers will be able to purchase the Model CPP and use it to revise or replace CPPs that are based on the requirements under the ETS. The Model CPP reflects all of the updated requirements that apply to employers and must be included in their CPPs.
Effective Period for the Permanent Standards and CPP
The Permanent Standards will take effect after the Office of Administrative Law (“OAL”) reviews and approves the regulations and they are posted by the Secretary of State.[1]
The Permanent Standards will remain in effect for two (2) years.
Application of the Permanent Standards to Employer CPPs
Section 3205 requires employers to recognize that COVID-19 is a workplace hazard.
Section 3205 requires that employers account for the threat to workplace health and safety caused by COVID-19 by identifying measures employers will use to address the threat in either their Injury and Illness Prevention Program (“IIPP”) or in a separate document that is specific to COVID-19 (i.e., a standalone CPP).
Given that a number of COVID-19 specific requirements under Section 3205 and the Permanent Standards are time-limited and will expire in two (2) years, we recommend that employers maintain a CPP that is separate and distinct from the IIPP, and can be more easily implemented and eventually rescinded.
Structural Changes to the Organization and Presentation of Terms Required to be Included in the CPP
Before discussing the substantive requirements set forth in Section 3205, it is important to note the organizational changes to the portions of Section 3205 which provide for the substantive parts of the prevention program.
While the prevention program provided for in Section 3205 covers many of the same subjects that were previously covered by the ETS, the order and presentation of these terms is different under the Permanent Standards than it was under the ETS.
As a result and in order to make the Model CPP a more user-friendly document, Liebert Cassidy Whitmore reorganized the presentation of the terms provided for in the Model CPP to align that document and its terms with the presentation of those terms in Section 3205.
Substantive Changes to Regulatory Requirements in the CPP
The following is an overview of some of the more important substantive changes to Section 3205:
Definitions
The new Permanent Standards use many of the same definitions that were used in the ETS. However, there are a couple of changes to the definitions of terms used in Section 3205.
“Close Contact”
Section 3205 continues to default to the California Department of Public Health (“CDPH”) definition of the term “Close Contact” when the CDPH has defined that term. However, in the absence of such a CDPH definition, Section 3205 uses a new and updated definition that aligns to a degree with the definition currently used by the CDPH. That definition looks to whether employees shared the same space in order to determine whether a COVID-19 exposure constitutes a close contact exposure. However, importantly, the regulatory definition does not distinguish between an “indoor space” and an “outdoor space” as the CDPH definition does.
In an earlier bulletin, we described the changes to the CDPH definition of “Close Contact”, and its impact on employers’ response to workplace COVID-19 exposures and its determination as to whether an exposure constituted a close contact exposure.
In the event of a workplace exposure, an employer should review the CDPH definition for the term “Close Contact” in order to determine the current and operative definition, if any, for that term, so that the employer can discharge its regulatory responsibilities to any employees who may have had a close contact exposure.
“Infectious Period”
Section 3205 also continues to default to the CDPH definition of the term “Infectious Period,” but also creates a new and updated definition for the term when CDPH has not defined the term.
The new and updated regulatory definition closely aligns with the definition currently being used by the CDPH and provides that the infectious period for both symptomatic and asymptomatic employees may be ended through and by a negative COVID-19 test taken on or after “day five.”[2]
Again, an employer should review the CDPH definition for the term “Infectious Period” in order to determine the current and operative definition, if any, for that term, so that the employer can act accordingly with COVID-19 cases who are in an “Infectious Period.”
Training and Instruction regarding COVID-19
Section 3205 requires that employers provide “training and instruction regarding COVID-19.” Section 3205 specifies when and to whom employers must provide the training and instruction, but not what such training and instruction must cover.
Section 3205 requires that employers provide the training and instruction at the following times to the following individuals: (1) When the employer adopts or updates the CPP; (2) When a new employee is hired; (3) When an employee is given new job assignments for which training has not previously been provided; (4) Whenever new substances, processes, procedures or equipment are introduced to the workplace and represent a new hazard; (5) Whenever the employer is made aware of a new or previously unrecognized hazard; and (6) For supervisors to familiarize themselves with the safety and health hazards to which employees under their immediate direction and control may be exposed. [3]
LCW’s Model CPP identifies a number of subjects on which employers should provide “training and instruction regarding COVID-19” in order to discharge their regulatory obligations. These subjects include: (1) COVID-19 Symptoms; (2) the spread and transmission of SARS-CoV-2; (3) the importance of COVID-19 vaccinations and boosters; (4) the importance of hand hygiene, Face Coverings and Respirators; (5) information regarding COVID-19-related benefits; and (6) information on the employer’s COVID-19 policies and procedures to protect employees from COVID-19, including what is provided for in the CPP.
Investigating COVID-19 Illness in the Workplace
Section 3205 maintains certain requirements from the ETS related to investigating COVID-19 illness in the workplace.
Section 3205 now requires that when an employer becomes aware of a COVID-19 case in the workplace, the employer must determine the following: (1) the day and time the COVID-19 case was last present at the workplace; (2) to the extent possible, the date of the positive COVID-19 test or diagnosis; and (3) to the extent possible, the date the COVID-19 case first experienced symptoms, if any.[4]
Section 3205 requires that employers identify and respond to employees who present symptoms associated with COVID-19, but does not establish a required regulatory response to such employees.[5]
Consequently, employers should continue to conduct contact tracing in the event of workplace COVID-19 exposures and to develop a policy and practice concerning how it will respond to employees who present symptoms associated with COVID-19.
Responding to Individuals with COVID-19
Section 3205 also maintains certain requirements related to responding to COVID-19 cases in the workplace.
Employers must continue to exclude COVID-19 cases from the workplace and possibly close contacts to the extent that their exclusion is required by CDPH.[6] Employers must also continue to provide excluded employees with information regarding COVID-19 related benefits to which the employee may be entitled under applicable federal, state, or local laws.
As a result, employers should continue to take action to respond to COVID-19 cases by excluding all individuals who are subject to CDPH isolation and quarantine requirements. It is important to note that exclusion pay for excluded COVID-19 cases is no longer required by Section 3205. Excluded employees may still be entitled to certain benefits, but exclusion pay is no longer provided for by Section 3205.
Testing of Close Contacts
Section 3205 maintains the requirement under the ETS that employers must provide COVID-19 tests to employees who have had a close contact exposure at no cost to the employee and during the employee’s paid time.[7]
Given the similarity of this requirement to requirements under the ETS, it is unlikely that employers will need to modify their practices in order to comply with these testing requirements.
Notice Requirements
Consistent with the requirements of Labor Code section 6409.6, Section 3205 requires that employers provide notice of workplace COVID-19 exposures to employees who were present at the worksite, the employers of independent contractors, and to the employee organizations, if any, which represent exposed employees at the worksite.
Outside the scope of Labor Code section 6409.6, Section 3205 also requires that employers provide notice to employees who have had a close contact exposure.
As these requirements are either provided for in the Labor Code or were covered in the ETS, it is unlikely that employers will need to modify their practices in order to comply with these notice requirements.
Face Coverings and Respirators
Section 3205 maintains the requirement from the ETS concerning the provision and use of face coverings and respirators.[8]
Given the similarity of this requirement to requirements under the ETS, it is unlikely the employers will need to modify their practices in order to comply with this requirement.
Ventilation
Section 3205 requires that employers review CDPH guidance regarding ventilation of indoor workplaces and evaluate whether the current ventilation is adequate. If it is not, employers must change their ventilation practices to ensure adequate ventilation.[9]
Employers should familiarize themselves with the CDPH ventilation guidance in order to determine whether it applies to their facilities and, if so, what employers need to do to ensure compliance with the guidance.
Reporting and Recordkeeping
Finally, Section 3205 imposes a number of reporting and recordkeeping requirements, some of which were previously covered under the ETS and some of which were not.
Employers must continue to report to the local health department information about COVID-19 cases, including COVID-19 outbreaks, when such reports are required by law as under Labor Code section 6409.6 or when required by the local health department.[10]
Employers must also track and keep a record of certain personal information concerning COVID-19 cases and close contacts. Previously, under the ETS, employers were not expressly required to keep records concerning employees who had close contact exposures.
Employers should modify their policies and practices in order to comply with these modified reporting and recordkeeping requirements.
In light of the above substantive requirements employers should immediately review and revise their CPPs in order comply with the new regulatory requirements and provide employees a training on the CPP.
As provided above, Liebert Cassidy Whitmore drafted an updated Model CPP that complies with the changes under the Permanent Standards and describes the changes to the regulation in detail. The Model CPP is available for purchase here. Liebert Cassidy Whitmore will also be providing a training on the Permanent Standards and the Model CPP in the New Year. Please stay tuned for additional information on that training.
Liebert Cassidy Whitmore attorneys are closely monitoring developments in relation to this Special Bulletin and are able to advise on the impact this could have on your organization. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.
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[1] Government Code § 11349.3
[2]8 C.C.R. § 3205(b)(9).
[3] 8 C.C.R. § 3205(c)(3).
[4] 8 C.C.R. § 3205(c)(4)(A).
[5] 8 C.C.R. § 3205(c)(4)(B).
[6] 8 C.C.R. § 3205(c)(5).
[7] 8 C.C.R. § 3205(d).
[8] 8 C.C.R. § 3205(f).
[9] 8 C.C.R. § 3205(h)(1).
[10] 8 C.C.R. § 3205(j)(1).