California employers have been on a four-week rollercoaster ride over Cal/OSHA’s revisions to its Emergency Temporary Standard (“ETS”). The ETS was originally effective November 2020. In May 2021, the Board for Cal/OSHA approved revisions to the ETS, and then withdrew the revisions five days before California’s state-wide reopening on June 15. Days later the Board proposed new revisions to the ETS.  On June 17, 2021, the Board finally approved revisions to the ETS.  The same day, the Governor signed an Executive Order making the revised ETS effective immediately. Below is a recap of some key new rules under the ETS affecting California employers.

  1. Employers may allow fully vaccinated employees not to wear face coverings indoors (except in outbreaks) but must document their vaccination status.
  2. There are no face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers should be trained on the California Department of Public Health’s (“CDPH”) recommendations for outdoor use of face coverings. CDPH’s recommendations can be found here.
  3. In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
  4. Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request. The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal” or fit.
  5. Physical distancing and barrier requirements are eliminated, regardless of employee vaccination status with the following exceptions:
      • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
      • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
  6. Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
  7. Employers may not retaliate against employees from wearing face coverings.
  8. Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air cleaning systems

While employers now have clarification on rules governing masking, physical distancing and barriers in the workplace, they still need to sort out documenting proof of vaccination, providing approved respirators upon request for voluntary use, and testing for fully vaccinated employees.  Cal/OSHA FAQs can be found here.


There remains in place many requirements from the original November 2020 ETS, including:

  • Mandatory, written COVID-19 Prevention Programs.
  • Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
  • Providing notification to public health departments of outbreaks.
  • Providing notification to employees of exposure and close contacts.
  • Requirements to offer testing after potential exposures.
  • Requirements for responding to COVID-19 cases and outbreaks.
  • Quarantine and exclusion pay requirements.

Stay tuned for updates and more guidance to meet the new ETS requirements.

Late on June 9, 2021, Cal/OSHA’s Standards Board withdrew the revisions to its COVID-19 prevention emergency temporary standards (“ETS”) that were approved on June 3, 2021 and were expected to take effect by June 15, 2021, in connection with California’s reopening and lifting of the restrictions under the “Blueprint for a Safer Economy.”  We wrote about the revisions to the ETS approved on June 3 here.

The Board said this vote to withdraw the revised ETS was made during a “meeting to consider the latest guidance regarding masking from the Centers for Disease Control (CDC) and California Department of Public Health (CDPH).”  In an email sent by the Department of Industrial Relations, they explained:

Those revised emergency standards were expected to go into effect no later than June 15 pending approval by the [Office of Administrative Law] OAL within 10 calendar days after the Standards Board rulemaking package submission. At today’s meeting, the Standards Board voted unanimously to withdraw the revisions approved on June 3 that are currently at OAL for review but have not yet become effective. Cal/OSHA will review the new mask guidance and bring any recommended revisions to the board. The Board could consider new revisions at a future meeting, perhaps as early as the regular meeting on June 17. In the meantime, the protections adopted in November of 2020 will remain in effect.

California employers are looking to Cal/OSHA for guidance on how the state’s reopening on June 15 will impact employers’ obligations.  While California lifts the “Blueprint for a Safer Economy” on June 15, employers are still subject to Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards.  The revisions to the ETS were an attempt to bring the workplace requirements for social distancing and face masks closer to the reopening standards for California residents on June 15.  However, with this June 9th announcement that Cal/OSHA is withdrawing the revised ETS, California employers must still continue to comply with the original ETS issued in November of 2020.  Therefore, even though California is “reopening” on June 15, 2021, California employers will have no relief from their current obligations under the original ETS, and still must continue to comply with those requirements.  For more information about what the original ETS require of California employers, see our prior post here.

Still confused and have questions about what this means for California employers?  Join us for a webinar tomorrow (6/10) at 10 a.m. for a discussion of what this all means for California employers. Click here to register for the webinar.


On June 3, 2021, the Cal/OSHA Standards Board met again to vote on new proposed revisions to the Cal/OSHA Emergency Temporary Standards (ETS). As we discussed here, the Standards Board did not vote on the revisions on May 20, as originally planned. A draft of the new proposed revisions was posted on May 28 and can be found here.  The revised ETS are effective June 15, 2021.

The June 3rd vote, however, was not as straightforward as anticipated. The meeting took almost all day and included hours of public comment. Initially, the Standards Board voted 4-3 to reject the May 28 revisions. This initial rejection was followed by a second vote just minutes later, which adopted the changes discussed below.

What changes were made to the ETS?

The new ETS starts by defining the term “fully-vaccinated.” Being fully-vaccinated means that employees are able to provide documentation showing that they have “received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single dose COVID-19 vaccine.”

Face Coverings

Fully vaccinated employees, either when alone in a room or in a room in which all other are also vaccinated and not experiencing symptoms, are no longer required to wear face coverings.  A “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.”

Physical Distancing

Also, the physical distancing requirement no longer applies at locations where all employees are fully vaccinated. Further, when outdoors, these individuals will no longer be required to keep six feet of distance from other unmasked employees. Fully vaccinated individuals are allowed to be outdoors without masks provided they are not experiencing COVID-19 symptoms. However, it is important to keep in mind that physical distancing will still be required until July 31, 2021 and fully vaccinated employees must still wear face coverings while indoors in the presence of individuals who have not been fully vaccinated.

Should a fully vaccinated person come in close contact with a COVID-19 case, employers are no longer required to exclude the vaccinated individual from the workplace, as long as he/she is not experiencing COVID-19 symptoms and was fully vaccinated prior to coming into contact with the infected individual. However, a fully vaccinated employee who tests positive for COVID-19 will still be required to stay out of the workplace for 10 days after the test whether experiencing symptoms or not.

Employer COVID-19 Testing Requirement

Employers are also now required to provide free COVID-19 testing during working hours to all unvaccinated symptomatic employees. This testing obligation does not apply to fully vaccinated employees

Other than guidelines regarding vaccinated employees, the new ETS addresses notice and testing requirements and the proper use of respirators.

Written Prevention Programs

In line with prior versions of the ETS, employers must still maintain written COVID-19 Prevention Programs. This written notice must include the employer’s plan for disinfecting the workplace and, information regarding the employer’s COVID-19 policies, and relay “the fact that the vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.” Although employers are still required to inform employees of close contact with a positive individual within one business day, this obligation is now triggered when the employer “knew or should have known of a COVID-19 case.”

Employer’s Obligation to Provide Unvaccinated Employees with Respirators

Beginning July 31, 2021, employers will be required to provide respirators to non-vaccinated employees. Cal/OSHA defines a respirator as a 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.” Use of these respirators, however, will be voluntary. Providing these to employees relieves employers of their duty to enforce physical distancing.

Exclusion Pay

Employees excluded from the workplace for COVID-19 cases and those who had close contact with COVID-19 cases are entitled to “earnings, wages, seniority, and all other employee rights and benefits” while away from the workplace. Like the prior ETS, employers can still use the employee’s sick leave for to satisfy this requirement as long as it does not run afoul to any applicable laws.

Under the new ETS, however, employers are still required to pay exclusion pay whether or not the excluded employee is able to work. This is a departure from the original version of the ETS, which did not require employers to pay exclusion pay to employees who, for any reason, could not work while away from the workplace.

It is worth noting that exceptions still apply to the employer’s obligation to provide exclusion pay. First, the employee is not entitled to exclusion pay if he/she is receiving disability payments or is covered by worker’s compensation. Additionally, if an employer can show that close contact was not work-related, the employer is not required to provide exclusion pay.

How does the new ETS compare to Governor Newsom’s reopening plan?

Since the proposed revisions were posted on May 28, many have criticized Cal/OSHA’s changes as not going far enough compared to Governor Newsom’s plans that would essentially end mask mandates and social distancing requirements as of June 15, 2021. In fact, the board members who initially voted against the revisions shared the same sentiment.

However, the Standards Board, specifically the board members who initially rejected the vote, acknowledged that the new ETS is at least a step in ultimately easing all pandemic related restrictions. Simply put, something is better than nothing. Cal/OSHA’s rejection of the proposed revisions would be taking significant steps backward as Governor Newsom marches forward with his plans to return Californian’s to pre-pandemic life.

More revisions likely to come.

In response to the criticism, the Board has created a three-person subcommittee to explore further revisions to the ETS.  Subscribe to our blog for future updates on this and other important topics facing California employers as they reopen.

In November of 2020, Cal/OSHA came out with the COVID-19 Emergency Temporary Standards (ETS), which we covered here. The ETS provided guidance to employers in regard to developing workplace safety policies in response to the COVID-19 pandemic and required employers to draft written COVID-19 Prevention Programs. Since then, the ETS has been updated to reflect the changing COVID-19 landscape. For information regarding prior updates to the ETS, see our prior post.

As COVID-19 related deaths hit their lowest points since the start of the pandemic and with approximately 59% of Californians at least partially vaccinated, Cal/OSHA once again proposed a new set of changes to the ETS on May 7, 2021. The proposed revisions can be found here.  At first glance, it seems as though many of the proposed changes were prompted by the need for guidance in light of a an increasingly vaccinated population. Naturally, employers should make sure to monitor any updates to the ETS to ensure compliance as the vaccinated workforce continues to grow and businesses begin to fully reopen.

The Standards Board was scheduled to vote on the proposed changes on May 20, 2021. However, on the eve of the vote, Cal/OSHA’s Deputy Chief Eric Berg asked the Board to postpone its vote on the draft proposal. Berg suggested that any changes to the existing ETS would come into effect on June 15, 2021. To meet this deadline, which coincides with the date that California plans on adopting the CDC’s guidance allowing vaccinated individuals to not wear masks, the Standards Board has scheduled a June 3 meeting to vote on the new changes. The revised proposal must be drafted and posted by May 28, 2021.

Late last year, Cal/OSHA implemented Emergency Temporary Standards that imposed dramatic new testing, training, and recordkeeping requirements related to COVID-19 exposure in the workplace. Most controversial of these new requirements was a mandate that employers “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” for employees excluded from the workplace under the ETS regulations, unless the employee was unable to work for other reasons (including hospitalization) or the employer could demonstrate that the COVID-19 exposure was not work related. Combined with requirements that even asymptomatic close contacts be excluded for at least 10 days (regardless of a negative test), this new ETS imposed significant pay obligations on employers just as various state and federal COVID-19 paid leave requirements were expiring at the end of 2020.

As noted previously, various business groups challenged portions of the ETS in state court in San Francisco, one of several such lawsuits. But after extensive briefing from the parties (and several interested non-parties), the judge last week issued an order denying a motion to preliminarily enjoin portions of the ETS:

Plaintiff have not shown a likelihood of prevailing on the merits of their claims.  Even if they could do so, the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health way heavily in favor of the continued implementation and enforcement of the ETS Regulations.  With the single exception of restrictions on attendance at religious services, which present unique constitutional considerations, no federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illness, hospitalization, and deaths that follow in its wake. [Citations] This Court will not be the first.  Lives are at stake.

There is no indication as to whether the plaintiffs will appeal. The case does not end with this denial, but the ruling means the court will allow the ETS regulations to stand while the litigation proceeds. Therefore, employers should continue to follow the ETS regulations and track new updates from Cal/OSHA.

On January 8, 2021, Cal/OSHA updated the Frequently Asked Questions pertaining to its COVID-19 Emergency Temporary Standards (ETS).  For some background on the ETS, see our prior posts here.  California employers need to continue to adjust their practices to ensure compliance with this updated guidance from Cal/OSHA.  The complete FAQs can be found here.  Below is a selection of some of the updated FAQs as they pertain to five issues that raise many questions for employers:

1. Enforcement and Employer’s Good Faith Efforts To Comply with the ETS

Question 10: How will Cal/OSHA enforce the ETS as employers implement the rule? 
A:All employers are expected to comply with all provisions of the ETS, and Cal/OSHA will enforce the ETS, taking into consideration an employer’s good faith efforts to comply.

In addition to consideration of an employer’s good faith effort to comply before issuing a citation, for the first two months the rules are in effect (i.e., through  February 1, 2021), Cal/OSHA will cite but not assess monetary penalties for violations of the ETS that would not have been considered a violation of the employer’s Injury and Illness Prevention Program, respiratory protection program or other applicable Cal/OSHA standard in place prior to November 30, 2020. This brief period of relief from monetary penalties will allow Cal/OSHA and employers to focus on obtaining compliance, while ensuring workers still benefit from the protections in the ETS. This policy will not apply where an employer fails or refuses to abate a violation of the ETS Cal/OSHA has identified, or in the case of imminent hazards.

2. Impact of Vaccinations Received by Employees

Question 24: Once an employee is vaccinated, must the ETS still be followed for vaccinated persons?
A: For now, all prevention measures must continue to be implemented. The impact of vaccines will likely be addressed in a future revision to the ETS.

3. Testing Requirements and Determination of Outbreaks or Major Outbreaks

Question 30: Can employers send their employees to a free testing site for testing (e.g., run by their county) and is this considered to be “at no cost to employees?”
A: Yes, as long as employees incur no cost for the testing. Ensuring that an employee does not incur costs would include paying employees’ wages for their time to get tested, as well as travel time to and from the testing site. It would also include reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs).

Question 45: How can an employer measure the 14- or 30-day period in which to look for positive cases to determine if there has been an outbreak or major outbreak?
The employer should look to the testing date of the cases. Any cases for which the tests occurred within a 14-day period would be reviewed to see if the other criteria for an outbreak have been met.

4. When Employees May Return to Work

Question 49: What are the criteria for an employee exposed to a COVID-19 case in the workplace to return to work?
A: Applying Executive Order N-84-20 and current CDPH quarantine guidance, while a 14-day quarantine is recommended, an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of last known exposure. Additionally, CDPH has provided guidance permitting health care, emergency response and social services workers to return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage.”

5. Employer’s Obligation to Pay “Exclusion Pay”

Question 52: Does an employer have to “maintain an employee’s 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” if the employee is unable to work because of his or her COVID-19 symptoms?
A: No, if an employee is unable to work because of his or her COVID-19 symptoms, then he or she would not be eligible for exclusion pay and benefits under section 3205(c)(10)(C). The employee, however, may be eligible for Workers’ Compensation or State Disability Insurance benefits.

Question 53: How long does an employee with COVID-19 exposure, or who tests positive for COVID-19 from the workplace, receive pay while excluded from the workplace?
A: An employee would typically receive pay for the period the employee is quarantined, which could be up to 14 days (see above for potential impact of EO N-84-20). If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness. The employee, however, may be eligible for temporary disability or other benefits.

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.

On December 1, new Cal/OSHA Emergency Temporary Standards (ETS) went into effect, creating a host of new COVID-19 obligations for employers. Included in the ETS regulations are specific testing procedures, training and prevention protocols, and recordkeeping and reporting requirements. The ETS regulations include several controversial provisions, including stringent 14-day exclusion requirements for asymptomatic close contacts and a mandate that, with limited exceptions, employers “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” for employees excluded from the workplace under the ETS regulations. (On December 14, the Governor issued an Executive Order easing the 14-day exclusion mandate, such that most asymptomatic close contacts may return after 10 days.)

Predictably, the Cal/OSHA ETS regulations have now been challenged in court. On December 16, the National Retail Federation, National Federation of Independent Businesses, and three California employers filed suit in state court in San Francisco. The plaintiffs assert that “California employers have established rigorous and science-driven safety measures, often at great expense,” to make workplaces safe,” and that the Cal/OSHA ETS regulations violate California law and are unconstitutional.

The plaintiffs make several arguments, including:

  • The ETS regulations were adopted without adequate public notice or hearing in violation of the California Administrative Procedure Act;
  • By requiring employers to maintain earnings of excluded employees, the ETS regulations seek to regulate wages and paid leave in excess of Cal/OSHA’s jurisdiction;
  • Because the enhanced “outbreak” testing protocols are triggered by three cases in a 14-day period, regardless of whether the employer has 5 employees or 500 employees, the ETS regulations are arbitrary and capricious;
  • The exclusion and pay requirements pose a threat to the viability of smaller employers;
  • The ETS regulations were adopted contrary to internal staff findings that the regulations were unnecessary and unsupported by science; and
  • the ETS regulations deprive employers of property without just compensation or due process.

The complaint seeks a declaratory judgment invalidating sections 3205(c)(10) [requiring exclusion of employees while maintaining earnings], 3205(c)(3)(b)(4.) [requiring employers to offer testing during “working hours” for close contact employees after workplace exposure], 3205.1(b) [requiring weekly workplace testing after a workplace “outbreak”], 3205.2(b) [requiring enhanced testing after a “Major COVID-19 outbreak”], and 3205.3(g) [requiring testing related to employer-provided housing].

As of this post, a case management conference is set for May 19, 2021.  However, as the complaint also requests a temporary restraining order and preliminary injunction, expect the plaintiffs to fie a motion in the near future seeking to enjoin enforcement of the challenged provisions while the case proceeds. Employers should continue to comply with the ETS regulations for the time being.

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.

The Golden State continues to be submerged in a rather bizarre reality. State and local government officials continue to juggle between safety and health concerns in one hand, and economic turmoil on the other. With no concise timeline as to when will business may go back to “normal” operations, employers must continue to comply with the labyrinth of federal, state and local rules regulations addressing COVID-19 issues. Unsurprisingly, administrative agencies have begun turning their resources towards enforcement of these rules and regulation. The latest agency to jump into this bandwagon is the California Department of Industrial Relations Division of Occupational Safety & Health (DOSH), or Cal/OSHA.

As an enforcement mechanism, Cal/OSHA may cite employers or businesses who fail to comply with health and safety requirements, particularly as they relate to COVID-19. Cal/OSHA has certainly deployed the “stick” method for employer compliance, as it issued citations to 11 different employers, equating to a total of roughly $116,775. These citations ranged from $2,025 to $51,190.

But why were these businesses cited? These particular businesses were cited for failing to protect workers from exposure to COVID-19, as they did not take steps to update their workplace safety plans to properly address hazards related to the virus. Among the reasons for the citations included: the businesses’ failure to ensure physical distancing, failing to install Plexiglas or other barriers between workers, failure to implement procedures to screen employees and visitors upon arrival to the facility, and failure to take appropriate measures for employees exhibiting COVID-19 symptoms at the business. The message is clear: employers should have already developed methods, strategies, and protocols to ensure compliance with these requirements.

Although these businesses are in the food processing, meatpacking, health care, agriculture and retail industries, this serves as a reminder to all businesses in any industry to comply with Cal/OSHA requirements. Indeed, Cal/OSHA Chief, Doug Parker, clearly stated that:

“These are industries where workers have been disproportionately affected, and these citations are the first of many to be issued in the coming weeks and months.”

Requirements Under Cal/OSHA

The overarching rule is that employers have a duty to provide work and workplaces that are safe and healthful. Further, Cal/OSHA’s regulations require protection for workers exposed to airborne infectious diseases such as COVID-19.

In particular, Cal/OSHA requires employers:

  • To implement an Injury and Illness Prevention Program (“IIPP”). The purpose of an IIPP is to protect employees from workplace hazards, including COVID-19. The IIPP should clearly establish relevant and applicable infection prevention measures, such as encouraging sick employees to stay home, encourage teleworking, and to practice social distancing. For a more detailed discussion of the requirements, see our previous post here.
  • Provide employee training. Employers must provide training to their employees with respect to COVID-19 generally, the ways in which COVID-19 may be spread by a person, proper use of cloth face coverings, the proper method for washing hands, and cleaning and sanitizing.
  • Provide personal protective equipment (PPE), if applicable. Employers must conduct a “hazard assessment” to determine if any PPE is needed to protect employees from hazards present – or likely to be present – in the workplace. Employers should review their local health department rules, requirements and regulations to ensure compliance. For example, restaurants doing businesses with Los Angeles County must provide employees with face masks and face shields.

Cal/OSHA has issued industry-specific guidance and guidelines on how to protect workers from COVID-19, and can be accessed here.

Employers should use this as an opportunity to review their protocols and ensure compliance not only with local regulations, but with safe and healthy requirements under Cal/OSHA.