There is still some confusion regarding the new Cal/OSHA Emergency Temporary Standards (ETS) that became effective on November 30, 2020 (we have written about the ETS previously here).  Here are five critical questions employers must consider about the ETS and their impact on the workplace:

1. What new reporting obligations do employers have under the ETS?

  • Employers must notify their local health department immediately but no longer than 48 hours after the employer knows or should have known of three or more COVID-19 cases.
  • Cal/OSHA must be notified when a COVID-19-related serious illness (such as a COVID-19 illness requiring inpatient hospitalization) or death occurs.

2. What investigation obligations do employers have regarding COVID-19 cases in the workplace?

The ETS requires employers to:

  • Develop an effective procedure to investigate COVID-19 cases in the workplace. This includes procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases.
  • For positive cases at the place of employment, employers need to:
    • Determine the day and time the COVID-19 case was last present, and to the extent possible, the date of the positive tests and/or diagnosis, and the date the COVID-19 case first had one or more COVID-19 symptoms, if any were experienced.
    • Determine who may have had a COVID-19 exposure and evaluate whether any employees need to be excluded from the workplace.
    • Give notice of the potential exposure to employees/independent contractors/other employers present at the workplace within one business day (employers must also comply with the written notice requirements of AB 685 as of January 1, 2021).
    • Offer testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace.
    • Investigate if any workplace conditions contributed to the risk of COVID-19 exposure and what could have done to reduce this exposure.

3. What written plan must employers have to comply with the ETS?

To comply with the ETS, an employer must develop a written COVID-19 Prevention Program or ensure these elements are included in an existing Injury and Illness Prevention Program (IIPP).

The employer must implement the following:

  • Communication to employees about the employer’s COVID-19 prevention procedures
  • Identify, evaluate and correct COVID-19 hazards
  • Physical distancing of at least six feet unless it is not possible
  • Use of face coverings
  • Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
  • Procedures to investigate and respond to COVID-19 cases in the workplace
  • Provide COVID-19 training to employees

4. How do employers calculate the rate of pay for employees who are entitled to continued earnings?

Over a month after the ETS when into effect, Cal/OSHA has not issued any guidance on how employers are to make this calculation.  As a reminder, the ETS require that employees who tests positive or have been exposed to COVID-19, are excluded from the workplace, and who are “otherwise able and available to work” must continue to have their “earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.”  Employers are permitted to apply their sick leave benefits towards this purpose and may consider benefit payments from public sources in making this calculation.  However, the calculation of an employee’s earnings can be difficult based on a number of factors.  For example, the calculation is particularly difficult for employees who work a variable schedule.  Hopefully, Cal/OSHA will be able to provide guidance on this requirement soon.

5. When must an employer provide COVID-19 testing to employees?

Employers must provide testing for employees when (1) the employee had a potential exposure in the workplace and (2) all employees at the “exposed workplace” during an outbreak (defined as 3 or more cases within a 14-day period).  During an “outbreak,” employees must be tested immediately, again one week later, and then administer continuous testing of employees who remain at the workplace at least once a week.