New Year, New Covid Regulations

A review of California’s recent Covid-19 policy updates, and some early considerations for California employers in 2023

The start of 2023 brings with it the fourth year that we have been collectively living with the Covid-19 pandemic. 2022 saw a number of changes regarding variants, the accessibility of vaccines and boosters, and for many, a new level of “Covid-fatigue.” At the same time, last year gave California employers mandates, policy updates, and a number of brand new regulations regarding both the state and federal response to Covid-19.

As we kick off the new year, here are some developments to keep in mind:

 

1. The Definitions of “Close Contact” and “Infectious Period” Changed.

In October, the California Department of Public Health (“CDPH”) changed the definitions of both “close contact” and “infectious period.” The new “close contact” definition means that everyone in a smaller space (400,000 cubic feet or less) who shares indoor airspace for a cumulative total of 15 minutes during an infectious period is considered a “close contact,” even if they were not within six feet of the infected employee. 

For indoor spaces greater than 400,000 cubic feet, the old definition of being within 6 feet for a cumulative total of 15 minutes or more in a 24-hour period still applies. The new “infectious period” definition is less stringent, and may end after five days, in some circumstances. The new definitions are here. 

2. California’s Covid-19 Supplemental Paid Sick Leave Expired on December 31, 2022

When the ball dropped at midnight and we closed the books on 2022, we also said goodbye to the 2022 Covid-19 Supplemental Paid Sick Leave (SPSL) law. While there is no 2023 SPSL currently set to replace it, there are still two ways an employee may qualify to receive leave under the 2022 provision. 
 

1. An employee, who was or was entitled to utilize SPSL at the end of December 2022 and whose SPSL benefit window extended into 2023, may receive the benefit of the 2022 SPSL despite the expiration. 
2. Workers, who were not paid the SPSL they were entitled to while unable to work in 2022 for Covid-related reasons, may still request that pay from their employer. 

The Labor Commissioner’s Office continues to maintain an updated FAQ regarding 2022 SPSL benefits. It can be found here.

While there is no movement toward 2023 SPSL at the state level, still in effect are local SPSL ordinances in Oakland, Long Beach, and both the City and County of Los Angeles. Most local ordinances remain in effect until shortly after the expiration of their respective Covid-19 local emergency (separate from the California statewide state of emergency). 

For example, the Los Angeles City Council voted to end the city’s state of emergency on February 1, 2023. As a result, LA city SPSL would then expire 2 weeks later on February 15. Additionally, San Francisco’s Public Health Emergency Leave Ordinance, operative as of October 1, 2022, provides employees of businesses with 100 or more employees worldwide of up to 80 hours of paid Public Health Emergency Leave. 

3. Covid-19 General Exposure Notification Requirements Continue Through January 1, 2024.

California public and private employers must continue to notify employees within one business day, if they have been exposed to Covid-19. While the notice obligation was set to expire on January 1, 2023, recently enacted AB-2693 extends an employer’s notice obligations to New Year’s Day 2024. 

The good news, however, is that the new law makes it easier for employers to notify their employees of exposure, by the information being posted in a prominent place where employees routinely receive other workplace announcements and on any existing employee portal used for sharing notices.

If employers choose to post the notice, it must remain posted for at least 15 calendar days and provide information including (1) the dates the employee or subcontracted employee was on the worksite; (2) the specific location of the exposures; (3) contact information for employees to receive information on Covid-19-related benefits to which exposed employees may be entitled; and (4) contact information to receive the cleaning and disinfection plan. 

The notice must be in English and the language understood by the majority of employees. Employers must keep a log of the dates the notice was posted at each worksite and retain those records for three years.

4. The Covid-19 Emergency Temporary Standards Will Likely Be Replaced by a “Non-Emergency” Covid-19 Prevention Regulation.

Since November 2020, California’s Division of Occupational Safety and Health (“Cal/OSHA”) has issued a series of Covid-19 Emergency Temporary Standards (“ETS”). The most recent ETS, which was set to expire on December 31, 2022, remains in place until the Office of Administrative Law can approve Cal/OSHA’s proposed Non-Emergency Covid-19 Prevention Standard.

The proposed Non-Emergency Standard relaxes some employer obligations, such as the need for a standalone written Covid-19 Prevention Program, which could instead be incorporated into an employer’s existing Injury and Illness Prevention Program (IIPP). 

Additionally, this new regulation does not require employers to pay employees while they are excluded from work, but does impose an obligation for employers to provide employees with information regarding federal, state, or local Covid-19 benefits they may be entitled to. Do note that this new regulation includes an employee training mandate and imposes an obligation to “develop, implement, and maintain effective methods to prevent Covid-19 transmission by improving ventilation.” 

Cal/Osha’s guidance for employers regarding the new Non-Emergency Standard can be found here.

5. The California State Covid-19 State of Emergency Order Is Ending.

As announced in October 2022, California’s Covid-19 state of emergency will end on February 28, 2023. The federal Public Health Emergency, which was set to expire on January 11, 2023, was renewed that same day. With the highly contagious Omicron subvariant XBB on the rise, we will have to wait and see if Governor Newsom changes his plans regarding ending the state of emergency.

	Arlene Yang is a Principal in Meyers Nave’s San Diego office. She advises companies on employment law issues, including Covid-19 policies, leave issues, reasonable accommodations for disabilities, and wage and hour issues. She conducts workplace investigations and specializes in litigation in state and federal court.
	Alicia Morrell is a Senior Associate in Meyers Nave’s Oakland office where she conducts workplace investigations, litigates, and counsels California employers.
	Alex Kat is an Associate in Meyers Nave’s San Diego office, where he assists on all aspects of employment law including wage and hour, harassment, discrimination, and retaliation claims. He conducts workplace investigations and advises on employee handbook policies.