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Cal/OSHA Non-Emergency COVID Regulation

While many COVID workplace rules are here to stay for 2023, employers can celebrate less administrative and financial burdens in certain areas. One big change that happened on February 3, 2023, is that Cal/OSHA's Non-Emergency COVID Regulation went into effect, meaning exclusion pay obligations have ended. “Exclusion pay” was the obligation to pay employees who were unable to work due to work-related COVID exposure. The new regulation will remain in effect until February 3, 2025 (with record-keeping obligations lasting until February 3, 2026).

 

As a reminder, Supplemental Paid Sick Leave (known as “SPSL” or “COVID sick pay”) for employers with 26 or more employees already expired as of December 31, 2022. So, you may be wondering how to handle COVID-related leave requests in light of the changes.   

 

COVID Leave Requests Going Forward

First, do not assume the employee is not entitled to leave for a COVID-related reason. You should handle a COVID leave request like any other request – determine if the employee is entitled to leave under the law or your policies. For example, you should consider whether the employee is entitled to use:

  • Mandatory paid sick leave
  • Leave under your vacation/PTO policy
  • Family and medical leave under CFRA/FMLA if the employee or their family member is experiencing a “serious health condition,” as certified by a medical professional, due to COVID
  • Leave as a reasonable accommodation under the FEHA/ADA for a COVID-related disability or medical condition
  • Any other protected leave, depending on the circumstances

Don't Forget About Tricky Local Ordinances

For employers with employees in the Cities of Oakland, Long Beach, Los Angeles, and the County of Los Angeles, there are still local SPSL ordinances in effect. Most of these ordinances state they will expire two weeks after their “local emergency” expires (which is separate from the state of emergency for California set to expire on February 28, 2023). Due to Los Angeles City ending its state of emergency, its SPSL ordinance will expire on February 15, 2023.

 

For San Francisco employers with 100 or more employees, they also have to remember to comply with the Public Health Emergency Leave Ordinance (PHELO), which provides leave for public health emergencies.

 

What Else Do I Need to Know?

Employers should note that while exclusion pay obligations have ended, the Non-Emergency Regulation carries over most of the COVID requirements from the previous Emergency Temporary Standard (ETS), subject to some changes. For example, employers still need to maintain a written COVID Prevention Program (CPP). Cal/OSHA already updated its template, which you can download on our COVID-19 Resources Page, as well as FAQs for the new standard.

Info from by California Employers Association news alert 2/8/2023

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