By Ilana MoradyPatrick D. JoyceCoby TurnerLiz Watson and Juan Rehl-Garcia 

Seyfarth Synopsis: Two big changes are on the horizon for California employers:
(1) changes to the COVID-19 general exposure notification requirements and (2) a proposed “permanent” Cal/OSHA COVID-19 standard to take effect January 1, 2023-2025.

The fall season signals change between the warmth and sun of summer and the cold and wet of winter. This year, fall also includes upcoming changes to the regulatory landscape in California as it pertains to COVID-19. Specifically, the passage of AB 2693 in late September and a recent round of edits to a proposed permanent Cal/OSHA COVID-19 standard have given employers new things to consider. Both of these new provisions are set to be effective January 1, 2023.

General Exposure Notice Changes

Methods of Notification

As California employers are well aware, legislation enacted early in the pandemic requires that written general exposure notification be provided to employees who were at the same worksite at the same time as a person with COVID-19, advising them that they “may have been exposed” to COVID-19, providing information about available benefits, and providing information the employer’s cleaning and disinfection plan. That legislation was set to expire at the end of 2022. However Governor Newsom just signed a new bill—AB 2693—which extends the general exposure notification requirement until January 1, 2024.

But there’s good news too: AB 2693 significantly reduces the burden on employers by allowing an option for the notice of potential exposure to be posted at the worksite, or on an employee portal if other workplace notices are posted on the portal. Like the notice required under the current legislation, it must be posted within one business day from when the employer learns of the COVID-19 case, and remain posted for at least 15 calendar days.

Employers still have the option to provide written notice to covered workers, and the employers of subcontracted workers, if they prefer. But, employers must still provide a written notice to the exclusive representative, if any, of the COVID-19 case(s) and any employees who had close contact.

Records of the written notices provided and a log of the dates of the notices posted must be maintained for 3 years.

Content of the Notice

The information required in the notice is also changing. Now, employers do not need to notify employees or other workers on site that “they may have been exposed.”

Rather, the new version of the notice has been streamlined, and now requires the following be included:

  1. The dates on which an employee, or employee of a subcontracted employer, with a confirmed case of COVID-19 was on the worksite premises within the infectious period.
  2. The location of the exposures, including the department, floor, building, or other area, but the location does not need to be so specific that it would allow individual workers to be identified.
  3. Instead of providing detailed information on the specifics, employers now only need to provide contact information for where employees may receive information regarding COVID-19-related benefits they may be entitled under applicable federal, state, or local laws, as well as antiretaliation and antidiscrimination protections of the employee.
  4. As a reminder, these benefits may include categories such as workers’ compensation, COVID-19-related local or emergency leave, company sick leave, state-mandated leave, recently extended COVID supplemental sick leave (which we recently blogged about here), or negotiated leave provisions.
  5. As a best practice, companies should ensure that their HR, Safety, or designated management personnel are prepared to provide this information upon request and are familiar with the local options for both paid and unpaid leave.
  6. Likewise, employers now only need provide contact information for where employees may receive the cleaning and disinfection planthat the employer is implementing per the guidelines of the CDC and the Cal/OSHA standards.
  7. Note: Workplace cleaning and disinfection plans are not currently part of CDC guidelines or Cal/OSHA requirements, so many employers will likely refer to their normal cleaning and/or disinfection protocols that may be independent of COVID-19 mitigation measures.

AB 2693 also requires the notice to be in English and the language understood by the majority of the employees.

Proposed Permanent COVID-19 Cal/OSHA Standard

Another major change is looming in the horizon. On January 1, 2023, a new 2-year “permanent”, or “non-emergency”, COVID-19 standard will likely replace the existing Emergency Temporary Standards which we have extensively written about in the past.

Several variations on the proposed rules have already been circulated ahead of a December 15th CAL/OSHA public meeting, during which the Cal/OSHA Standards Board is widely expected to pass the new standard in advance of the December 31, 2022 expiration of the current ETS.

Much of the ETS has carried over into the new proposed standard, but there are also some major changes that employers should be aware of.

Highlights from the Proposed Non-Emergency Standard

The rules highlighted here represent the most substantive differences between the ongoing ETS and the proposed permanent standard set to replace it at the start of 2023. The Division is accepting comments by email ([email protected]) on the most recent version of the proposed standard until October 31st. It remains possible that the proposed “permanent standard” that ultimately goes into effect may be different in some regards than what’s currently proposed.

Workplace Solutions

Stay tuned for updated guidance and developments on the workplace safety front in California. Seyfarth will be closely monitoring the outcome of the December 15 meeting on the proposed permanent standard, and will be updating our readers here. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.