COVID-19 Prevention Non-Emergency Regulation replaces COVID-19 Prevention Emergency Temporary Standard

Effective February 3, 2023, the COVID-19 Prevention Emergency Temporary Standards(“ETS”) have been replaced by the COVID-19 Prevention Non-Emergency Regulation (“NER”).

Recall that in May, 2022 Cal/OSHA approved a third and final version of ETS which remained in effect until Dec 31, 2022. On December 15, 2022, Cal/OSHA approved NER which is effective for a two-year period, starting February 3, 2023, through February 3, 2025.

Although NER is substantially similar to the former ETS, it also differs in several ways. The most significant differences are as follows:

• NER changes the definition of “Close Contact” to make a distinction between contact that would constitute Close Contact in indoor spaces that are larger or smaller than 400,000 cubic feet per floor. ETS did not make this distinction.
• NER broadens the definition of “Exposed group” to include employees within employer-provided transportation and employees residing in employer provided housing.
• With reference to when an infectious period has passed, NER expands the definition of “Infectious period” to include the fifth day from onset of symptoms, if testing negative on day five or later, or in the case of asymptomatic cases, two days before a positive specimen collection through day five if testing negative on day five or later . ETS did not contain this 5-day period when determining the Infectious period.
• NER removes the ETS requirement for employers to maintain a standalone COVID-19 Prevention Plan, but requires that employers include COVID-19 as a workplace hazard in an Injury and Illness Prevention Program or other standalone document. Employers should also continue to train employees on effective COVID-19 hazard prevention, identify COVID-19 health hazards and develop methods to prevent transmission in the workplace.
• NER eliminates the requirement for 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 provision effectively created a requirement for employers to provide potentially unlimited sick leave related to COVID-19. The removal of this provision has eliminated exclusion pay requirements under the regulation.

Employers should ensure that they do the following in accordance with their written program:

• Determine prevention measures, and implement effective policies to limit COVID-19 transmission and identify and correct COVID-19 hazards.
• Provide COVID-19 training to employees.
• Investigate and respond to COVID-19 cases in the workplace by excluding COVID-19 cases from the workplace until they are no longer an infection risk and meet the criteria for returning to work.
• Make COVID-19 testing available to employees at no cost, in accordance with the specific requirements of the regulations.
• Notify employees of Covid-19 cases in the workplace.
• Require COVID-19 cases to wear a mask in the workplace, regardless of vaccination status, prior infection, or lack of COVID-19 symptoms, until 10 days have passed since the date that symptoms began, or from the date of their first positive test if asymptomatic. NER also requires employers to supply respirators upon request, in specific circumstances.
• Advise employees they can wear face coverings at work regardless of their vaccination status, and that retaliation by the employer is illegal.
• Improve indoor ventilation and air filtration to prevent COVID-19 transmission.
• Require respiratory protection during aerosolizing procedures.
• Keep records of COVID-19 cases at the workplace.
• Maintain records of COVID-19 cases, and report serious illnesses and outbreaks to Cal/OSHA and to the local health department when required.

This communication is not intended to be an exhaustive explanation of the requirements under NER, and we encourage employers to seek legal advice for your specific situation.

If you have any questions or need assistance to adopt or amend an Injury and Illness Prevention Program to include a COVID-19 procedure, please contact Kurtis Urien at or 714-972-2333.