On February 3, 2023, California’s Office of Administrative Law approved Cal/OSHA’s COVID-19 Non-Emergency Regulation (NER). The NER is now the operative COVID-19 regulation for most California employers. Cal/OSHA also released FAQs, which are unpacked below.

Overall, the NER is somewhat less burdensome for employers than the prior Cal/OSHA Emergency Temporary Standard (“3rd Revised ETS”). For example, the NER:

Cal/OSHA also issued FAQs, which repeat much of the information contain in previous iterations. Highlights include:

Although the NER is generally less prescriptive on how to implement COVID-19 hazard control measures, some employers may want to consider keeping existing controls established under the 3rd Revised ETS. By way of example, symptom screening, a system for communicating, personal protective equipment (PPE), and specific COVID-19 training topics are not explicitly itemized in the COVID-19 NER. Yet, for some employers’ workplaces and operations (e.g., many employees working within close proximity of one another), such control measures may still be necessary to reduce transmission risk. Further, the NER contains a slightly more rigorous provision regarding ventilation, requiring that employers either maximize the supply of outside air, employ the highest level of filtration efficiency compatible with existing mechanical ventilation systems, and/or use HEPA filtration units.

The NER treats COVID-19 as a workplace hazard and employers have the general duty to control the hazard as they would any other hazard under California’s Injury and Illness Prevention Program regulation. This duty includes methods to effectively identify hazards and implement control measures (some of which could be screening or PPE). The California Department of Public Health/local health orders and guidance would need to be considered when deciding what control measures are appropriate. Further, a system for communicating with employees and assessing what PPE is necessary are also required under existing Cal/OSHA regulations. In short, employers may be well served by conducting a risk assessment of COVID-19 in their workplace and reviewing existing regulatory obligations before discontinuing existing control measures.

At time of publication, the new COVID-19 regulations have not been updated on the Department of Industrial Relations website. A copy of the NER regulations as approved by the California Occupational Safety & Health Standards Board is available here.

Employers with California operations covered by the NER should be aware that the new regulation is now in effect until February 3, 2025, and should consider conferring with counsel to navigate their compliance obligations.

Source: Littler Mendelson PC – Eric L. CompereMelissa K. PetersAlka Ramchandani-RajDavid A. Dixon and P. Sean Kearney

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