On November 30, 2020, California’s Office of Administrative Law approved Cal/OSHA’s emergency standards setting forth new requirements for California employers. Under the new requirements employers must develop a written COVID-19 prevention program, train employees, provide personal protective equipment to employees, provide certain information to employees, and abide by record keeping and new reporting requirements. Here are five issues California employer must review in order to comply with the new requirements:

1. Applies to most California employers staring November 30, 2020

The new emergency regulations apply to most California employers, except:

  • Workplaces where there is only one employee who does not have contact with other people
  • Employees who are working from home
  • Employees who are covered by the Aerosol Transmissible Diseases regulation

The effective date for the regulations is November 30, 2020.  While the regulations were imposed on employers with very little notice, Cal/OSHA recognizes that it will take employers some time to comply with the regulations and will recognize employer’s “good faith efforts in working towards compliance, but some aspects, such as eliminating hazards and implementing testing requirements during an outbreak, are essential.”

2. Workplace prevention steps

The new regulations require employers to take certain steps in regards to COVID-19 in the workplace, such as:

  • Develop a written COVID-19 Prevention Program or ensure its elements are already present in an existing Injury and Illness Prevention Program (IIPP). Cal/OSHA has posted a model COVID-19 Prevention Program to help employers start developing their program.
  • Physical distancing protocols
  • Face coverings protocols
  • Engineering controls such as setting up partitions and maximizing outside air
  • Administrative controls such as: establishing cleaning procedures, inform employees of cleaning procedures, minimize sharing of tools, equipment and vehicles, cleaning of areas during “high risk period” after positive COVID-19 case, provide time for hand washing and providing hand sanitizer
  • Personal protective equipment: evaluate need for PPE, provide eye and respiratory protection for employees exposed to procedures that aerosolize saliva or other potentially infectious materials (such as some dental procedures)

3. Training required for employees

The emergency regulations also require employers to provide training to employees for certain subjects, such as:

  • Employer policies and procedures
  • COVID-19 related benefit information: such as that posted the Department of Industrial Relations’ Coronavirus Resources webpage
  • Information about COVID-19 and its spread
  • Importance of physical distancing and wearing face coverings
  • Cal/OSHA is updating its website to provide training resources for employers

4. Addressing COVID-19 in the workplace

Cal/OSHA also set forth new requirements for employers to address positive cases and exposure in the workplace, including:

  • Investigate and respond to COVID-19 cases in the workplace: determine when COVID-19 was last in the workplace, and if possible the date of testing and onset of symptoms; determine which employees may have been exposed; notifying employees of any potential exposure within one business day; offer testing to employees potentially exposed; investigate and correct any issues at the workplace that may have contributed to the risk of exposure
  • Testing obligations: inform employees about how to be tested; offer testing to an employee potentially exposed at the workplace at no cost to the employee during work hours; provide periodic testing to employees in an “exposed workplace” during an outbreak; maintain employee confidentiality during testing
  • In a non-outbreak setting, employers must determine if an employee was exposed to COVID-19 if they were within 6 feet of a COVID-19 case for a cumulative of 15 minutes within any 24-hour period during the “high risk exposure period”, which is:
    • For COVID-19 cases who develop COVID-19 symptoms, from two days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
    • For persons who test positive but never develop COVID-19 symptoms, from two days before until ten days after the specimen for their first positive test for COVID-19 was collected.

“Exposed workplace” is defined by Cal/OSHA as:

An exposed workplace is a work location, working area, or common area used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. If, within 14 days, three COVID-19 cases share the same “exposed workplace,” then the Multiple COVID-19 Infections and COVID-19 Outbreaks standard (section 3205.1) applies and additional testing will be required. When determining which areas constitute a single “exposed workplace” for purposes of enforcing testing requirements, Cal/OSHA does not expect employers to treat areas where masked workers momentarily pass through the same space without interacting or congregating as an “exposed workplace,” so they may focus on locations where transmission is more likely.

An “outbreak” is defined as three or more COVID-19 cases in an “exposed workplace” within a 14-day period or as identified as an outbreak by the local health department.  During an “outbreak” employers must:

  • Comply with all non-outbreak requirement
  • Immediately provide testing to all employees in the exposed workplace and exclude positive cases and exposures from work and repeat testing one week later, and
  • Continue testing employees at least weekly until the workplace is no longer qualifies as an outbreak.

Other requirements apply to a “major outbreak” which is defined as 20 or more COVID-19 cases in an “exposed workplace” within a 30-day period.

The regulations set out that a COVID-19 case may return to work when any of the following occur:

  • For employees with symptoms all of these conditions must be met:
    1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
    2. COVID-19 symptoms have improved; and
    3. At least 10 days have passed since COVID-19 symptoms first appeared
  • For employees without symptoms, at least 10 days have passed since the COVID-19 case’s first positive test
  • If a licensed health care professional determines the person is not/is no longer a COVID-19 case, in accordance with California Department of Public Health (CDPH) or local health department recommendations

Employees who have been exposed to COVID-19 may return to work 14 days after the last known exposure.

A negative COVID-19 test shall not be required for an employee to return to work.

The emergency temporary standards and the Cal/OSHA FAQs set forth that employers must pay an employee who is excluded from work for COVID-19 reasons, but is otherwise able and available for work.  The FAQs provide that:

If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments. (Please refer to the Labor Commissioner’s COVID-19 Guidance and Resources for information on paid sick leave requirements.). These obligations do not apply if an employer establishes the employee’s exposure was not work-related.

This new obligation has raised many concerns, as well as questions about Cal/OSHA’s ability to require pay for employees excluded from work.  This is one of many issues that will likely be addressed during the stakeholder meeting in December that will incorporate feedback into potential updates of the standards.

5. Record keeping and reporting requirements

Employers are required to keep records under the emergency temporary standards, such as:

  • Follow state and local health department reporting requirements.
  • Contact the local health department when there are three or more COVID-19 cases in the workplace within a 14-day period and must provide the following information:
    • Total number of COVID-19 cases.
    • For positive cases, the name of the employee, contact information, occupation, workplace location, business address, hospitalization and/or fatality status, and North American Industry Classification System code of the workplace of the COVID-19 case.
    • Any other information required by the local health department.
  • Recording and tracking all COVID-19 cases and recording certain information for these cases. Employers must remember to keep medical information confidential.

Cal/OSHA may be modifying the emergency temporary standards in December, so it is important for employers to continue to monitor Cal/OSHA’s website for updates.  Cal/OSHA’s FAQs can be found here, a one-page fact sheet can be found here, and future training webinars through Cal/OSHA will be posted here.