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California Occupational Safety and Health Standards Board Approves Final Language for Cal/OSHA’s COVID-19 Regulation

On December 15, 2022, the California Occupational Safety and Health Standards Board adopted the COVID-19 Prevention Non-Emergency Regulation, modifying Title 8 of the General Industry Safety Orders. The regulation passed, 6–1, in a near-unanimous vote of the seven-member Standards Board.

The Standards Board previously met on November 17, 2022, following a fifteen-day notice period in which it invited written and oral comments on proposed updates to the text of the regulation. At the December 15, 2022, meeting, members of the public expressed varying views on the proposal, with some urging a “permanent regulation” to extend beyond a sunset date and others opposing the regulation as unnecessary for responsible employers “who are going to do what they can to protect their employees.”

The California Department of Occupational Safety and Health’s (Cal/OSHA) current emergency temporary standards (ETS) are set to expire on December 31, 2022. The new regulation will be effective from January 1, 2023, through December 31, 2024.

Although the new regulation largely extends many of the requirements that are currently in place under the ETS, there were some changes in the final language.

One of the latest changes that many consider to be less burdensome on employers is that the new regulation eliminates exclusion pay requirements for employers. The ETS previously had required employers to “continue and maintain an employee’s earnings, wages, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.” This effectively created a requirement that employers provide sick leave related to COVID-19 that had the potential to be unlimited.

The new regulation eliminates this requirement. However, COVID-19 supplemental paid sick leave has been extended until December 31, 2022.

Further, the new regulation is no longer being hailed as “permanent,” as it now has a date certain for its expiration: December 31, 2024.

Key Takeaways

The regulation defines COVID-19 as a workplace hazard for which an employer will be required to develop an effective injury and illness prevention program that ensures methods and/or procedures for implementation.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 350

About this Author

Karen Tynan, employment lawyer, Ogletree Deakins
Of Counsel

Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

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