February 5, 2023

Volume XIII, Number 36

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February 03, 2023

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COVID-19 ETS May Be Sunsetting But A New Dawn of a New Permanent Standard is Rising

On December 31, 2022, Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) finally sunset. However, the Standards Board has been working to pass a permanent standard to ensure it is in place before the expiration of the ETS. The Board has announced it will be voting on the permanent standard at its upcoming meeting on December 15th.

Of note, while it is called a permanent standard, the proposed standard includes a two-year sunset, consistent with the recognition that COVID-19 is now moving into its endemic phase.

As employers prepare for a permanent standard here are some of the highlights of what will stay the same and change from the ETS.

Changes from ETS

  • End of Exclusion Pay.  One of the biggest changes in the permanent standard is that exclusion pay will no longer be required to compensate employees who miss work due to an employer-caused COVID-19 exposure.

  • Modified Masking Requirements. Certain mask requirements have been removed from the permanent standard. The definition of an “exposed group” still contains a “momentary pass-through” exception. This exception is being broadened to include individuals who are not masked. As re-defined, the momentary pass-through exception applies to a place where persons momentarily pass through without congregating, provided that it is not a work location, working area, or a common area at work.

  • Reduced Reporting Requirements. Employers will no longer be required to report outbreaks to the local health department under the permanent standard. Moreover, a COVID-19 outbreak can be deemed over when “one or fewer” new cases are detected in the exposed group for a 14-day period. An investigation, review, and correction of hazards following an outbreak no longer will be required to be “immediate” following an outbreak.

Continuation from ETS

  • Recordkeeping Requirements.  Employers will still be required to maintain records of workers’ infections, but they will not need to maintain records of employees deemed a close contact.

  • Updated Definition of “Close Contact.”  The definition of “close contact,” which is important for purposes of notice, also continues to be linked to the California Department of Public Health definition.

Jackson Lewis P.C. © 2023National Law Review, Volume XII, Number 339
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About this Author

Jenifer Bologna Employment Lawyer Jackson Lewis
Of Counsel

Jenifer Bologna is Of Counsel in the White Plains, New York, office of Jackson Lewis P.C.

Ms. Bologna has extensive experience counseling employers on a variety of employment law issues. Ms. Bologna specializes in assisting employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees, the most notable being the Americans with Disabilities Act and the Family and Medical Leave Act. In addition to counseling and training employers, Ms. Bologna represents management in workplace litigation in both...

914-872-6869
Associate

Sean Paisan is Of Counsel in the Orange County, California, office of Jackson Lewis P.C. His practice focuses on workplace safety and health (OSHA), data privacy, and traditional employment matters, including litigation and counseling.  

Sean’s first exposure to OSHA regulations occurred during his undergraduate studies while working for a construction company that helped build Disney’s California Adventure. After attending law school and working for the Los Angeles County District Attorney’s Office and the United States...

949-885-5233
Sierra Vierra, Jackson Lewis Law Firm, Sacramento, Labor and Employment Litigation Attorney
Associate

Sierra Vierra is an Associate in the Sacramento, California, office of Jackson Lewis P.C. She represents management in civil litigation and administrative proceedings involving employment law matters, including discrimination, harassment, retaliation, wrongful termination, benefits, and a wide range of wage and hour issues. She litigates in federal and state courts, including class and representative actions, and represents employers in administrative proceedings. She also provides preventive advice and counsel on best practices.

...
916-288-3008
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