Cal/OSHA Issues Proposed Permanent COVID-19 Hazard Standard: 10 Takeaways

On September 17, 2021, Cal/OSHA issued proposed language for a permanent COVID-19 hazard standard.  The “permanent” aspect of the rule may be limited to 2-3 years after its adoption.  The existing COVID-19 Prevention Plan standard is a temporary standard and requires that Cal/OSHA eventually propose a permanent standard.  While this is still merely a proposal, employers should be prepared to implement them if they become effective.  The present Emergency Temporary Standard expires on January 14, 2022.  The Board held a meeting on September 23, 2021 to discuss the proposed changes.

This post highlights some of the proposed changes and how they may impact employer compliance:

1. Shift from Distinct Prevention Plan to A General Workplace Hazard. The regulations shift the focus of COVID-19 from a standalone “COVID-19 Prevention Plan” requirement to a component of the “Injury and Illness Prevention Program” (IIPP) under General Industry Safety Orders § 3203.  This generally means that the required features of a IIPP will include COVID-19 hazards as a potential workplace hazard.
2. Vaccine Verification. For an employee to be considered “fully vaccinated” the employer must maintain an electronic or physical copy of the employee’s vaccination record.  The proposed language also states that the record must identify which vaccine was used, the dates the person received the vaccine, and include any booster doses that the CDC may determine are necessary.
3. Testing Applies Irrespective of Vaccination. Under the proposed standard, employers must make testing available at no cost to employees with close contacts, irrespective of vaccination status.
4. End of Exclusion Pay Requirement. Notably absent from the language is the former “exclusion pay” requirement.  Employers will still need to provide excluded employees information concerning COVID-19-related benefits.
5. Shift to CDPH Standards. Many sections in the proposed standard defer to California Department of Public Health (CDPH) standards with a ‘backstop’ standard in the language of the regulation.  This means that future shifts in CDPH orders or guidance may impact the assessment of COVID-19 hazards and definitions for relevant periods of time.
6. Quarantine for Persons with Close Contact. The proposed standard requires adherence to the required CDPH quarantine period, but suggests that if no period is mandated, employers must review guidance and develop a policy to exclude persons with close contact from the workplace.
7. Exposure Notice Points Back to Labor Code. Cal/OSHA points to Labor Code § 6409.6 for notice of exposure. This is a departure from the present regulations arguably duplicative albeit separate standard for notification.
8. Face Covering Requirements for Unvaccinated Employees Continue. The proposed language would provide that employees who are treated as unvaccinated must be provided face coverings that are to be worn indoors and in vehicles.  CDPH orders would also control when face coverings are required.
9. Respirators Must Be Provided to At–Risk Employees. Employees whose physician or health care professional determine are at increased of severe illness from COVID-19 must be provided respirators upon request and irrespective of vaccination status.
10. Distancing Rules Suggested in Outbreak Settings. While distancing factors into general hazard assessment requirements, the only suggestion concerning distancing is found in major outbreak settings.

There are several additional changes present in the proposed language.  However, the proposed language is still merely proposed.  Please contact the attorneys at Sagaser, Watkins & Wieland, P.C. for your questions about continuing COVID-19 compliance.