California OSHA (Cal/OSHA) has released a draft long-term COVID-19 rule that is already drawing employer concerns for its stricter definition of “close contact,” but the same stakeholders are welcoming plans to end the controversial “exclusion pay” requirement that mandates compensation for workers removed from their duties under the standard.
Cal/OSHA quietly released the draft rule last week as its first step toward a permanent replacement for the COVID-19 emergency temporary standard (ETS) instituted in the early days of the pandemic, an updated version of which is currently slated to remain in effect until the end of the year. The employer-focused law firm Conn Maciel Carey also released a comparison document showing changes between the ETS and the proposed permanent rule.
Andrew Sommer, a partner with the firm, tells Inside OSHA that the proposed permanent rule is expected to remain in effect for two years, except for recordkeeping provisions that would be effective for three years.
And he says one of the most significant changes in the draft permanent rule is that it would replace the ETS’ current definition of “close contact” -- adopted from the Centers for Disease Control & Prevention (CDC) -- with new language consistent with guidance issued by the California Department of Public Health (CDPH) on June 8.
Under the current ETS, “an employee must be within 6 feet of the COVID-19 positive individual to experience a close contact in the workplace,” Sommer says. But the draft permanent rule proposes to define close contact as “’sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes or more over a 14-hour period during the COVID-19 case’s infection period.’”
By removing the CDC benchmark, “the CDPH definition makes everyone working in the same indoor space a close contact, potentially even if they are separated by a football field,” Sommer continues. “An employee within that work area during the positive case’s infectious period would then need to be tested within 3-5 days of the last exposure. And any close contact refusing to be tested must be excluded from the workplace for 10 days.”
CDPH’s justification for changing the definition is that “’COVID-19 is an airborne disease,’” he adds. “But there is a limit to the distance in which aerosols can travel, even under the least favorable conditions. Use of the vague term ‘indoor airspace’ in the updated definition is problematic, as it may be subject to wildly divergent interpretations.”
Unions and public-health groups previously urged federal OSHA to adopt a similarly broad approach to COVID-19’s airborne spread in comments on a planned long-term healthcare rule at that level, arguing that new research showing aerosol transmission of the coronavirus makes it important for a standard to cover all employees at a healthcare site rather than only targeting certain areas.
Program Requirements Eased
Sommer tells Inside OSHA that despite his concerns about the definition of close contact, overall, the proposed permanent rule actually “scales back” some of Cal/OSHA’s current COVID-19 Prevention Program requirements, in part by removing “enumerated elements to be incorporated into the employer’s program document.”
He says, “Instead, under the current proposed rule, the employer’s written program need only include its ‘COVID-19 procedures.’”
The proposed permanent rule also strikes “the specific training topics required per the emergency rule,” Sommer adds. Rather, “employees ‘shall receive training regarding COVID-19’ consistent with” Cal/OSHA’s existing Injury and Illness Prevention Program training requirements.
Like the emergency rule, the proposed permanent rule “provides a standard for the exclusion of COVID-19 cases,” outlining conditions where infected employees must avoid in-person work, “while deferring to CDPH guidance” on the exclusion of individuals who have experienced a “close contact,” according to Sommer.
Notably, however, “the proposed permanent rule does not require exclusion pay,” as the ETS does. -- Curt Barry (firstname.lastname@example.org)
Editor's Note: This story has been updated to correct its characterization of the document comparing the ETS and proposed permanent standard.