Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) Scope.
(1) This section shall apply until February
3, 2025, except for the recordkeeping subsection
3205(j), which
shall apply until February 3, 2026.
(2) This section applies to all employees and
places of employment, with the following exceptions:
(A) Work locations with one employee who does
not have contact with other persons.
(B) Employees working from home.
(C) Employees with occupational exposure as
defined by section
5199, when covered by that
section.
(D) Employees teleworking
from a location of the employee's choice, which is not under the control of the
employer.
(3) Nothing in
this section or sections
3205.1 through
3205.3 is intended to limit more
protective or stringent state or local health department orders or
guidance.
(b)
Definitions. The following definitions apply to this section and to sections
3205.1 through
3205.3.
(1) "Close contact" means the following,
unless otherwise defined by regulation or order of the California Department of
Public Health (CDPH), in which case the CDPH definition shall apply:
(A) In indoor spaces of 400,000 or fewer
cubic feet per floor, a close contact is defined as sharing the same indoor
airspace as a COVID-19 case for a cumulative total of 15 minutes or more over a
24-hour period during the COVID-19 case's infectious period, as defined by this
section, regardless of the use of face coverings.
(B) In indoor spaces of greater than 400,000
cubic feet per floor, a close contact is defined as being within six feet of
the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour
period during the COVID-19 case's infectious period, as defined by this
section, regardless of the use of face coverings.
(C) Offices, suites, rooms, waiting areas,
break or eating areas, bathrooms, or other spaces that are separated by
floor-to-ceiling walls shall be considered distinct indoor spaces.
EXCEPTION: Employees have not had a close contact if they
wore a respirator required by the employer and used in compliance with section
5144 whenever they would otherwise
have had a close contact under subsections
3205(b)(1)(A) or
(b)(1)(B).
(2) "COVID-19" (Coronavirus Disease 2019)
means the disease caused by SARS-CoV-2 (severe acute respiratory syndrome
coronavirus 2).
(3) "COVID-19 case"
means a person who:
(A) Has a positive
COVID-19 test; or
(B) Has a
positive COVID-19 diagnosis from a licensed health care provider; or
(C) Is subject to a COVID-19-related order to
isolate issued by a local or state health official; or
(D) Has died due to COVID-19, in the
determination of a local health department or per inclusion in the COVID-19
statistics of a county.
(4) "COVID-19 hazard" means potentially
infectious material that may contain SARS-CoV-2, the virus that causes
COVID-19. Potentially infectious materials include airborne droplets, small
particle aerosols, and airborne droplet nuclei, which most commonly result from
a person or persons exhaling, talking or vocalizing, coughing, or sneezing, or
from procedures performed on persons which may aerosolize saliva or respiratory
tract fluids.
(5) "COVID-19
symptoms" means fever of 100.4 degrees Fahrenheit or higher, chills, cough,
shortness of breath or difficulty breathing, fatigue, muscle or body aches,
headache, new loss of taste or smell, sore throat, congestion or runny nose,
nausea or vomiting, or diarrhea, unless a licensed health care professional
determines the person's symptoms were caused by a known condition other than
COVID-19.
(6) "COVID-19 test" means
a test for SARS-CoV-2 that is:
(A) Cleared,
approved, or authorized, including in an Emergency Use Authorization (EUA), by
the United States Food and Drug Administration (FDA) to detect current
infection with the SARS-CoV-2 virus (e.g., a viral test); and
(B) Administered in accordance with the
authorized instructions.
(C) To
meet the return to work criteria set forth in subsection
3205(c)(5), a
COVID-19 test may be both self-administered and self-read only if another means
of independent verification of the results can be provided (e.g., a
time-stamped photograph of the results).
(7) "Exposed group" means all employees at a
work location, working area, or a common area at work, within employer-provided
transportation covered by section
3205.3, or residing within housing
covered by section
3205.2, where an employee COVID-19
case was present at any time during the infectious period. A common area at
work includes bathrooms, walkways, hallways, aisles, break or eating areas, and
waiting areas. The following exceptions apply:
(A) For the purpose of determining the
exposed group, a place where persons momentarily pass through, without
congregating, is not a work location, working area, or a common area at
work.
(B) If the COVID-19 case was
part of a distinct group of employees who are not present at the workplace at
the same time as other employees, for instance a work crew or shift that does
not overlap with another work crew or shift, only employees within that
distinct group are part of the exposed group.
(C) If the COVID-19 case visited a work
location, working area, or a common area at work for less than 15 minutes
during the infectious period, and the COVID-19 case was wearing a face covering
during the entire visit, other people at the work location, working area, or
common area are not part of the exposed group.
NOTE: An exposed group may include the employees of more
than one employer. See Labor Code sections
6303 and
6304.1.
(8) "Face covering" means a surgical mask, a
medical procedure mask, a respirator worn voluntarily, or a tightly woven
fabric or non-woven material of at least two layers that completely covers the
nose and mouth and is secured to the head with ties, ear loops, or elastic
bands that go behind the head. If gaiters are worn, they shall have two layers
of fabric or be folded to make two layers. A face covering is a solid piece of
material without slits, visible holes, or punctures, and must fit snugly over
the nose, mouth, and chin with no large gaps on the outside of the face. A face
covering does not include a scarf, ski mask, balaclava, bandana, turtleneck,
collar, or single layer of fabric.
This definition includes clear face coverings or cloth
face coverings with a clear plastic panel that otherwise meet this definition
and which may be used to facilitate communication with people who are deaf or
hard-of-hearing or others who need to see a speaker's mouth or facial
expressions to understand speech or sign language
respectively.
(9)
"Infectious period" means the following time period, unless otherwise defined
by CDPH regulation or order, in which case the CDPH definition shall apply:
(A) For COVID-19 cases who develop COVID-19
symptoms, from two days before the date of symptom onset until :
(1) Ten days have passed after symptoms first
appeared, or through day five if testing negative on day five or later;
and
(2) Twenty-four hours have
passed with no fever, without the use of fever-reducing medications, and
symptoms have improved.
(B) For COVID-19 cases who never develop
COVID-19 symptoms, from two days before the positive specimen collection date
through 10 days (or through day five if testing negative on day five or later)
after the date on which the specimen for their first positive test for COVID-19
was collected.
(10)
"Respirator" means a respiratory protection device approved by the National
Institute for Occupational Safety and Health (NIOSH) to protect the wearer from
particulate matter, such as an N95 filtering facepiece respirator.
(11) "Returned case" means a COVID-19 case
who was excluded from work but returned pursuant to subsection
3205(c)(5)(A) and
did not develop any COVID-19 symptoms after returning. A person shall only be
considered a returned case for 30 days after the initial onset of COVID-19
symptoms or, if the person never developed COVID-19 symptoms, for 30 days after
the first positive test. If a period of other than 30 days is required by a
CDPH regulation or order, that period shall apply.
(12) "Worksite," for the limited purposes of
this section and section
3205.1, means the building, store,
facility, agricultural field, or other location where a COVID-19 case was
present during the infectious period. It does not apply to buildings, floors,
or other locations of the employer that a COVID-19 case did not
enter.
(c) Application of
section 3203. COVID-19 is a workplace
hazard and shall be addressed under section
3203, which requires employers to
establish, implement, and maintain an effective Injury and Illness Prevention
Program. The employer's COVID-19 procedures shall either be addressed in the
written Injury and Illness Prevention Program or maintained in a separate
document.
(1) When determining measures to
prevent COVID-19 transmission and to identify and correct COVID-19 hazards,
employers shall consider all persons to be potentially infectious, regardless
of symptoms, vaccination status, or negative COVID-19 test results.
(2) When determining measures to prevent
COVID-19 transmission and to identify and correct COVID-19 hazards, employers
shall review applicable orders and guidance related to COVID-19 from the State
of California and the local health department with jurisdiction over the
workplace and shall treat COVID-19 as an airborne infectious disease. COVID-19
prevention controls include remote work, physical distancing, reducing the
density of people indoors, moving indoor tasks outdoors, implementing separate
shifts and/or break times, restricting access to the work area, and other
prevention measures, in addition to the requirements of this section.
(3) Employees shall receive training
regarding COVID-19 in accordance with subsection
3203(a)(7).
(4) The employer's procedure to investigate
COVID-19 illness at the workplace, as required by subsection
3203(a)(5), shall
include the following:
(A) The employer shall
determine the day and time a COVID-19 case was last present and, to the extent
possible, the date of the positive COVID-19 test(s) and/or diagnosis, and the
date the COVID-19 case first had one or more COVID-19 symptoms, if any were
experienced.
(B) The employer shall
effectively identify and respond to persons with COVID-19 symptoms at the
workplace. Employees shall be encouraged to report COVID-19 symptoms and to
stay home when ill.
(5)
Employers shall have effective methods and/or procedures for responding to a
COVID-19 case at the workplace, including the following:
(A) Employers shall immediately exclude from
the workplace all COVID-19 cases and employees excluded under section
3205.1. The employer shall
demonstrate it has met the applicable requirements below:
1. COVID-19 cases who do not develop COVID-19
symptoms shall not return to work during the infectious period;
2. COVID-19 cases who develop COVID-19
symptoms shall not return to work during the shorter of the following: the
infectious period; or through 10 days after the onset of symptoms and at least
24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has
resolved without the use of fever-reducing medication.
3. Regardless of vaccination status, previous
infection, or lack of COVID-19 symptoms, a COVID-19 case shall wear a face
covering in the workplace until 10 days have passed since the date that
COVID-19 symptoms began or, if the person did not have COVID-19 symptoms, from
the date of their first positive COVID-19 test.
4. The requirements in subsections
3205(c)(5)(A)1.
and (c)(5)(A)2. apply regardless of whether an employee has previously been
excluded or other precautions were taken in response to an employee's close
contact or membership in an exposed group.
(B) Employers shall review current CDPH
guidance for persons who had close contacts, including any guidance regarding
quarantine or other measures to reduce transmission. Employers shall develop,
implement, and maintain effective policies to prevent transmission of COVID-19
by persons who had close contacts.
(C) If an order to isolate, quarantine, or
exclude an employee is issued by a local or state health official, the employee
shall not return to work until the period of isolation or quarantine is
completed or the order is lifted.
(D) If no violations of local or state health
official orders for isolation, quarantine, or exclusion would result, the
Division may, upon request, allow employees to return to work on the basis that
the removal of an employee would create undue risk to a community's health and
safety. In such cases, the employer shall develop, implement, and maintain
effective control measures to prevent transmission in the workplace including
providing isolation for the employee at the workplace and, if isolation is not
feasible, the use of respirators in the workplace.
(E) Upon excluding an employee from the
workplace based on COVID-19 or a close contact, the employer shall give the
employee information regarding COVID-19-related benefits to which the employee
may be entitled under applicable federal, state, or local laws. This includes
any benefits available under legally mandated sick leave, if applicable,
workers' compensation law, local governmental requirements, the employer's own
leave policies, and leave guaranteed by contract.
(d) Testing of close contacts. Employers
shall make COVID-19 tests available at no cost, during paid time, to all
employees of the employer who had a close contact in the workplace, with the
exception of returned cases as defined in subsection
3205(b)(11), and
provide them with the information on benefits described in subsection
3205(c)(5)(E).
(e) Notice of COVID-19 cases.
(1) The employer shall notify employees and
independent contractors who had a close contact, as well as any employer with
an employee who had a close contact. Notice shall be provided as soon as
possible, and in no case longer than the time required to ensure that the
exclusion requirements of subsection
3205(c)(5)(A) are
met.
(2) When Labor Code section
6409.6 or any
successor law is in effect, the employer shall provide notice of a COVID-19
case, in a form readily understandable to employees. Notice shall be given to
all employees, employers, and independent contractors at the worksite in
accordance with the applicable law.
(3) When Labor Code section
6409.6 or any
successor law is in effect, the employer shall provide notice in accordance
with the applicable law to the authorized representative, if any, of the
COVID-19 case and of any employee who had a close contact. The employer shall
also provide notice in accordance with the applicable law to the authorized
representative, if any, of all employees on the premises at the same worksite
as the COVID-19 case within the infectious period.
(f) Face coverings.
(1) Employers shall provide face coverings
and ensure they are worn by employees when required by a CDPH regulation or
order. When a CDPH regulation or order requires face coverings indoors, that
includes spaces within vehicles. Face coverings shall be clean, undamaged, and
worn over the nose and mouth.
(2)
When employees are required to wear face coverings under this section or
sections 3205.1 through
3205.3, the following exceptions
apply:
(A) When an employee is alone in a
room or vehicle.
(B) While eating
or drinking at the workplace, provided employees are at least six feet apart
and, if indoors, the supply of outside or filtered air has been maximized to
the extent feasible.
(C) While
employees are wearing respirators required by the employer and used in
compliance with section
5144.
(D) Employees who cannot wear face coverings
due to a medical or mental health condition or disability, or who are
hearing-impaired or communicating with a hearing-impaired person. Such
employees shall wear an effective non-restrictive alternative, such as a face
shield with a drape on the bottom, if the condition or disability permits
it.
(E) During specific tasks which
cannot feasibly be performed with a face covering. This exception is limited to
the time period in which such tasks are actually being
performed.
(3) If an
employee is not wearing a face covering pursuant to the exceptions in
subsections
3205(f)(2)(D) and
(f)(2)(E) the employer shall assess COVID-19
hazards and take action as necessary based on subsection
3205(c) and on
section 3203.
(4) No employer shall prevent any employee
from wearing a face covering, including a respirator, when not required by this
section, unless it would create a safety hazard.
(g) Respirators. Upon request, employers
shall provide respirators for voluntary use in compliance with subsection
5144(c)(2) to all
employees who are working indoors or in vehicles with more than one person.
Whenever an employer makes respirators for voluntary use available, the
employer shall encourage their use and shall ensure that employees are provided
with a respirator of the correct size and that employees are trained how to
properly wear the respirator provided; how to perform a user seal check
according to the manufacturer's instructions each time a respirator is worn;
and the fact that facial hair interferes with a seal.
(h) Ventilation.
(1) For indoor workplaces, employers shall
review CDPH and the Division guidance regarding ventilation, including "Interim
Guidance for Ventilation, Filtration, and Air Quality in Indoor Environments."
Employers shall develop, implement, and maintain effective methods to prevent
transmission of COVID-19 including one or more of the following actions to
improve ventilation:
(A) Maximize the supply
of outside air to the extent feasible, except when the United States
Environmental Protection Agency (EPA) Air Quality Index is greater than 100 for
any pollutant or if opening windows or maximizing outdoor air by other means
would cause a hazard to employees, for instance from excessive heat or
cold.
(B) In buildings and
structures with mechanical ventilation, filter circulated air through filters
at least as protective as Minimum Efficiency Reporting Value (MERV)-13, or the
highest level of filtration efficiency compatible with the existing mechanical
ventilation system.
(C) Use High
Efficiency Particulate Air (HEPA) filtration units in accordance with
manufacturers' recommendations in indoor areas occupied by employees for
extended periods, where ventilation is inadequate to reduce the risk of
COVID-19 transmission.
(2) Employers subject to section
5142 or
5143 shall review and comply with
those sections, as applicable.
NOTE: Section
5142 requires heating, ventilating,
and air-conditioning (HVAC) systems to be operated continuously during working
hours, with limited exceptions.
(3) In vehicles, employers shall maximize the
supply of outside air to the extent feasible, except when doing so would cause
a hazard to employees or expose them to inclement weather.
(4) A place of employment subject to section
3205.1 after February 3, 2023 shall
continue to comply with the ventilation requirements of subsection
3205.1(f) even
after the outbreak has passed and section
3205.1 is no longer
applicable.
(i)
Aerosolizing procedures. For employees in work settings that are exempt from
section 5199 in accordance with the
conditions in subsection
5199(a)(2)(A) or
(a)(2)(B), who are exposed to procedures that
may aerosolize potentially infectious material such as saliva or respiratory
tract fluids, employers shall evaluate the need for respiratory protection to
prevent COVID-19 transmission under section
5144 and shall comply with that
section.
NOTE: Examples of work covered by subsection
3205(i) include,
but are not limited to, certain dental procedures and outpatient medical
specialties not covered by section
5199.
(j) Reporting and recordkeeping.
(1) The employer shall keep a record of and
track all COVID-19 cases with the employee's name, contact information,
occupation, location where the employee worked, the date of the last day at the
workplace, and the date of the positive COVID-19 test and/or COVID-19
diagnosis. These records shall be retained for two years beyond the period in
which the record is necessary to meet the requirements of this section or
sections 3205.1 through
3205.3.
(2) Employers shall retain the notices
required by subsection
3205(e) in
accordance with Labor Code section
6409.6 or any
successor law.
(3) Personal
identifying information of COVID-19 cases or persons with COVID-19 symptoms,
and any employee medical records required by this section or by sections
3205.1 through
3205.3, shall be kept confidential
unless disclosure is required or permitted by law. Unredacted information on
COVID-19 cases shall be provided to the local health department with
jurisdiction over the workplace, CDPH, the Division, and NIOSH immediately upon
request, and when required by law.
(k) Orders. Pursuant to title 8, section
332.3, the Division may require an
employer to take additional actions to protect employees against COVID-19
hazards through the issuance of an Order to Take Special Action.
1. New
section filed 11-30-2020 as an emergency; operative 11-30-2020. Emergency
expiration extended 60 days (Executive Order N-40-20) plus an additional 60
days (Executive Order N-71-20) (Register 2020, No. 49). A Certificate of
Compliance must be transmitted to OAL by 10-1-2021 or emergency language will
be repealed by operation of law on the following day. For prior history, see
Register 74, No. 43.
2. Governor Newsom issued Executive Order
N-84-20 (2019 CA EO 84-20), dated December 14, 2020, which suspended certain
provisions relating to the exclusion of COVID-19 cases from the
workplace.
3. Editorial correction of punctuation errors in
subsections (b)(1), (c)(3) (D), (c)(10)(C) and (c)(10)(E) (Register 2021, No.
24).
4. New section refiled with amendments 6-17-2021 as an
emergency; operative 6-17-2021 pursuant to Executive Order N-09-21 (Register
2021, No. 25). Exempt from the APA pursuant to Government Code sections
8567,
8571 and
8627
(Executive Order N-09-21). Emergency expiration extended 60 days (Executive
Order N-40-20) plus an additional 60 days (Executive Order N-71-20). A
Certificate of Compliance must be transmitted to OAL by 1-13-2022 or emergency
language will be repealed by operation of law on the following
day.
5. New section, including amendments, refiled 1-5-2022 as an
emergency; operative 1-14-2022 (Register 2022, No. 1). A Certificate of
Compliance must be transmitted to OAL by 4-14-2022 or emergency language will
be repealed by operation of law on the following day.
6. Editorial
correction of HISTORY 5 (Register 2022, No. 9).
7. Emergency filed
1-5-2022 extended an additional 21 calendar days pursuant to Executive Order
N-5-22. A Certificate of Compliance must be transmitted to OAL by 5-5-2022 or
emergency language will be repealed by operation of law on the following
day.
8. New section, including amendments, refiled 5-5-2022 as an
emergency pursuant to EO N-23-21; operative 5-5-2022 pursuant to EO N-23-21
(Register 2022, No. 18). Pursuant to EO N-23-21, a Certificate of Compliance
must be transmitted to OAL by 12-31-2022 or emergency language will be repealed
by operation of law on the following day.
9. Certificate of
Compliance as to 5-5-2022 order, including amendment of section, transmitted to
OAL 12-20-2022 and filed 2-3-2023; amendments effective 2-3-2023 pursuant to
Government Code section
11343.4(b)(3)
(Register 2023, No. 5).
10. Editorial correction of HISTORY 9
(Register 2023, No. 29).
Note: Authority cited: Section
142.3, Labor
Code. Reference: Sections
142.3,
144.6 and
6409.6, Labor
Code.
