On December 15, 2022, Cal/OSHA’s Board adopted slightly more flexible COVID-19 Non-Emergency Standards (“CNS”) to replace the current Emergency Temporary Standards. Although Cal/OSHA originally intended the CNS to be effective on January 1, 2023, the actual effective date depends on how quickly the CNS is filed with the Secretary of State (likely in January 2023).
Until that happens, the current Cal/OSHA Emergency Temporary Standards (“ETS”) remain operative. Employers can find our past article on the third ETS here. Once the CNS goes live, it will remain in effect for two years, except for the recordkeeping subsections, which will apply for three years.
The CNS largely carries forward the ETS requirements, but there are several key CNS changes described below.
Under the ETS, if an employer excluded a worker from the worksite because the worker was exposed to COVID-19 at work, then during the exclusion period, the employer had to maintain the employee’s “earnings, wages, seniority, and … benefits.” Once the CNS goes live, this exclusion pay will end.
Under the CNS, employers have greater flexibility to create COVID-19 safety-related documentation in one of two ways: (1) addressing it in the written Injury and Illness Prevention Program (“IIPP”), or (2) maintaining a separate CPP. In addition, COVID-19 training need not be done separately, but can instead be part of the employer's overall safety (IIPP) training.
To align with the California Department of Health (“CDPH”), the CNS includes several key COVID-19 definitional changes:
The CNS defers to Labor Code Section 6409.6, which allows employers the flexibility of choosing to post a notice at the workplace, or continue issuing individual written notices. A posted exposure notice must be in English as well as the language understood by the majority of employees, must be posted within one business day of when the employer receives notice of the potential exposure, and must remain posted for 15 days.
Remember that the ETS still requires employers to provide individualized written notice to employees of a potential COVID-19 exposure in the workplace within one business day of notice of the positive case until the CNS goes live (meaning the posting option will be slightly delayed).
Once the CNS goes live, employers will no longer be required to report COVID-19 cases or outbreaks to their local health departments (unless the local rules in the employer’s jurisdiction require doing so). For major outbreaks, the CNS contains a new requirement that employers must report the outbreak to Cal/OSHA itself. Under the CNS, both the outbreak and major outbreak standards apply until there are “one or fewer” new COVID-19 cases in the exposed group for a 14-day period.
The CNS also may require the use of HEPA filters during outbreak scenarios, depending on an employer’s ventilation system. However, the CNS will no longer require document retention related to close contact (contact tracing) in a workplace exposure situation.
The Department of Industrial Relations (“DIR”) will soon post revised FAQs and additional information on the CNS, which, once posted, will be accessible here. For now, the DIR has posted a brief document titled, “COVID-19 Prevention Non-Emergency Regulations – What Employers Need to Know,” available here. For the final CNS language, click here.
Employers should continue to track the CNS progress closely and be prepared to comply with its more flexible approach once it is live. Employers also must continue to regularly check both the CDPH guidance (the ETS and CNS often defer to CDPH guidance), and any applicable local health orders or guidance in their specific geographic regions to determine if stricter CDPH or local standards apply to their workplace.
For questions regarding COVID-19 requirements, the CNS, or assistance with other employment law issues, contact the attorneys at LightGabler.