On Thursday, December 15, 2022, the Occupational Safety and Health Standards Board adopted the COVID-19 Prevention Non-Emergency Regulation. Earlier in the Fall of 2022, Cal/OSHA issued its Notice of Proposed Modifications to its pending draft COVID-19 Workplace Non-Emergency (permanent) regulation governing COVID-19 safety for covered workplaces. 

Significant provisions include but are not limited to the following:

• “Close contact” is defined by size of the workplace:
  • For indoor spaces of 400,000 or fewer cubic feet per floor, a ‘close contact’ is defined as sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes over a 24-hour period, regardless the use of face coverings, during the COVID-19 case’s infectious period.
  • For indoor spaces of greater than 400,000 cubic feet per floor, a ‘close contact’ is defined as being within six feet of the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period, regardless of the use of face coverings, during the COVID-19 case’s infectious period.
  • Distinct indoor spaces are considered as offices, suites, rooms, waiting areas, bathrooms, break or eating areas, or other spaces that are separated by floor-to-ceiling walls.
• With respect to COVID-19 testing, employers are required to make COVID-19 testing available at no cost to employees following a close contact during paid time, except for returned cases.
• For all indoor locations, employers must review California Department of Public Health (CDPH) guidance and implement measures to prevent transmission through ventilation and/or improved filtration.
• Per CDPH, Infectious Period is defined as:
  • Two days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5-10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved for symptomatic infected persons or
  • Two days before the positive specimen collection date through Date 10 after positive specimen collection date (or through Days 5-10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.
• Employers are required by law to provide and maintain a safe and healthy workplace for employees, including measures to prevent COVID-19 exposure.
  • Employers must maintain an Injury and Illness Prevention Program (IIPP) addressing COVID-19 as a workplace hazard and includes measures to improve employee training, prevent workplace transmission, and methods responding to COVID-19 cases at the workplace.

Additional significant changes between the first draft of the non-emergency regulation and the revised adopted version include:

• Face covering requirement eliminated for specific "Exposed Group" exception. (Section 3205(b)(7))
• Returned cases, as defined, are only considered returned cases for 30 days after initial onset of symptoms, instead of 90 days. This limits the applicability of the returned case exception to the no cost testing availability requirement contained elsewhere in the regulation. (Section 3205(b)(11))
• Changes to notice requirements made to account for anticipated changes to Labor Code Section 6409.6. (Section 3205(e))
• Changes to ventilation requirements which appear to make them more prescriptive. (Section 3205(h))
• Changes to reporting and recordkeeping requirements. (Section 3205(j))
• Decreased threshold to emerge from outbreak protocols, and slightly modified requirements for an employer to review its COVID-19 policies, procedures, and controls and implement changes as needed, during outbreaks. (Section 3205.1(a)(2); Section 3205.1(e))