On November 30, 2020, the Office of Administrative Law of the State of California approved a new set of Cal/OSHA emergency regulations that require employers to protect workers from hazards related to COVID-19. These regulations went into effect immediately and dramatically increase employers’ obligations in the ongoing battle against COVID-19.
Here’s a summary of the pertinent provisions:
As a preliminary matter, the emergency standards apply to all employers, employees, and places of employment with three exceptions: 1) workers covered by Cal/OSHA’s Aerosol Transmissible Diseases standard; 2) workplaces with only one employee who does not have contact with other people; and 3) workers who are working from home.
First, the regulations require employers to establish, implement, and maintain an effective COVID-19 Prevention Program. This program must be in writing. In general, the COVID-19 Prevention Program must include the following elements:
- Communication System: Employers must ask employees to report COVID-19 symptoms, possible exposures, and possible COVID-19 hazards. Employers must create a reporting system and provide information about the system to employees. Additionally, employers must provide employees with information about access to COVID-19 testing, COVID-19 hazards, and the employer’s policies and procedures related to COVID-19.
- COVID-19 Hazard Identification and Evaluation: Employers must establish processes, policies, and procedures to identify COVID-19 hazards in each workplace.
- Investigation and Response to COVID-19 Cases: Employers must establish a method and procedure to identify and investigate COVID-19 cases. As discussed below, this response must include notifying potentially exposed employees within one business day, providing testing at no cost to potentially exposed employees during working hours, and providing potentially exposed employees with information about COVID-19-related benefits. Employers must also determine whether workplace conditions could have contributed to the COVID-19 exposure and identify specific steps to reduce any such risks.
- Correction of COVID-19 Hazards: Employers must correct unsafe and unhealthy conditions (g. by requiring that employees practice safe physical distancing, modifying the workplace by constructing physical barriers, and staggering work schedules if possible).
- Face Masks: Employers must require that all workers wear appropriate PPE, including face masks, unless an employee is working alone in a room or the employee cannot wear a face mask due to a verified medical condition. The employer must provide this PPE to employees and ensure it is adequately maintained and replaced when necessary.
- Physical Distancing: Employees must be separated from other persons by at least six feet, except where such separation is not possible or where there is momentary exposure while persons are moving. If it is not possible to maintain at least six feet of distance, individuals must be as far apart as possible.
- COVID-19 Training: Employers must provide training to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19-related benefits.
- Recordkeeping: Employers must maintain records of the implementation of the Program and must make the Program available to employees, authorized employee representatives, and Cal-OSHA representatives immediately upon request. Additionally, employers must record each COVID-19 case (e. 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 a positive COVID-19 test). All medical information must be kept confidential.
Second, the regulations require employers to offer to test any employee who might have been exposed to COVID-19 at the workplace. This COVID-19 testing must be offered at no cost to employees and be provided during working hours. The time an employee spends being tested is considered compensable hours worked and must be paid as such.
Additionally, when there is a Workplace Outbreak (three or more cases in a workplace in a 14-day period), the employer must provide weekly testing to all employees in the exposed workplace until the workplace no longer qualifies as a Workplace Outbreak. Further, when there is a Major Workplace Outbreak (20 or more cases within a 30-day period), the employer must provide semi-weekly testing to all employees in the exposed workplace until there are no new cases detected for a 14-day period.
Please note that, when there is a Major Workplace Outbreak, the employer must also: 1) upgrade the mechanical ventilation systems to at least MERV-13; 2) evaluate whether HEPA air filtration units are needed; 3) determine whether to adopt a respiratory protection program (under section 5144); and 4) consider halting operations.
Third, the regulations require employers to notify employees and public health departments in specific circumstances. Thus:
- When an employer learns that an individual with COVID-19 was at a workplace, the employer must notify all employees and contractors who may have been exposed (and their authorized representatives, if applicable) within one business day. Please note, this notification must not reveal the personal identifying information of the individual with COVID-19.
- When there is a Workplace Outbreak (three or more cases in a workplace in a 14-day period), the employer must contact the local health department and provide specific information (g. the total number of COVID-19 cases, information about each case, and any other information requested by the local health department).
- When there is a COVID-19-related serious illness or death occurring at the workplace or in connection with employment, the employer must notify CAL/OSHA.
These notification requirements are in addition to the notification requirements imposed by AB 285.
Fourth, employers are required to exclude from the workplace all employees who have COVID-19 or were exposed to COVID-19. The regulations define “exposure to COVID-19” as being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the high-risk exposure period.
An employee who was exposed to COVID-19 cannot return to work for at least 14 days after the last known COVID-19 exposure. Please note, this is longer than the CDC’s current recommendation.
An employee with COVID-19 or COVID-19 symptoms cannot return to work until: (1) at least 24 hours has 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.
An employee with COVID-19 but is asymptomatic cannot return to work until at least 10 days “since the date of specimen collection of their first positive COVID-19 test.”
Fifth, if an employee is excluded from work and is otherwise able and available to work, the employer must continue to provide that employee with pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing this exclusion pay and may offset payments by the amount an employee receives in other benefit payments. This requirement does not apply if the employer establishes that the employee was not exposed to COVID-19 at the workplace.
Cal/OSHA will hold several training webinars and will convene a stakeholder meeting in December 2020 to review and evaluate this emergency regulation, so we expect these requirements will be clarified in the near future.
We assist employers in proactively complying with COVID-19 related requirements and in responding to specific situations. If you are interested in discussing these issues, or have any questions about this blog, please feel free to contact us.