The Cal/OSHA Standards Board is looking to extend its COVID-19 regulation once again. Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS), which was first adopted November 2020, is set to expire after December 31, 2022.  The Cal/OSHA Standards Board has now published, and is expected to enact, a semi-permanent rule that would replace the ETS. It is scheduled to take effect on January 1, 2023.

On September 15, 2022, the Cal/OSHA Standards Board held a public hearing on the proposed rule. While preserving many of the requirements in the current ETS, the proposed rule also contemplates key changes from the ETS. Employers should be aware of these proposed changes, as well as the proposed rule’s final language, and ensure that employment policies and practices are compliant with new obligations.

The proposed rule’s requirements would expire after two years, except for certain recordkeeping provisions related to COVID-19 cases, notifications, and production of information and documents to government agencies. The proposed rule’s recordkeeping requirements would expire after three years. Thus, the COVID-19 requirements would expire on January 1, 2025, and the recordkeeping requirements would expire on January 1, 2026.

Below is summary of some of the key aspects of the proposed rule:

• The proposed rule does not include a requirement for employers to provide exclusion pay to employees who are excluded from the workplace due to COVID-19.
• The proposed rule would require employers to identify and address COVID-19 as a workplace hazard in their written injury and illness prevention plan (IIPP).
• The proposed rule leaves the ETS reporting requirements intact, and employers will need to continue to report COVID-19 cases and “outbreaks” to local health departments. However, recordkeeping requirements will be expanded such that employers will now need to keep records for all close contacts in addition to all COVID-19 cases. Employers must retain these confidential records for two years and immediately provide these records to Cal/OSHA, CDPH, local health departments, and the National Institute for Occupation Safety and Health upon request.
• The proposed rule includes language potentially providing employers with flexibility about how quickly they must notify employees, independent contractors, and any employer with an employee that they were in close contact with a COVID-19 case in the workplace.

The above list is not exhaustive and further revisions to the proposed rule may be forthcoming.

Employers should continue to comply with the current Cal/OSHA ETS requirements (including incorporated CDPH guidance) and Governor Newsom’s Executive Orders, as well as all applicable county and other local orders.

Western Growers and a coalition of agricultural groups is strongly opposing the proposed rule. In a letter to the Board, the coalition argues that the regulation is unnecessary and conflicts with other rules and guidance. industry has controlled COVID-19 outbreaks through masking, physical barriers and distancing and said most spikes are from social gatherings.