Dec. 2, 2020 Cal/OSHA’s Newly Approved Emergency Temporary Standards RE: COVID-19 Call for Immediate Action by Employers

On November 19, 2020, the California Department of Industrial Relations’ (“DIR”) Occupational Safety and Health Standards Board (“Board”) unanimously adopted emergency temporary standards to protect workers from hazards related to COVID-19. On November 30, 2020, these standards were approved by the Office of Administrative Law and put into effect immediately.

The Board has acknowledged that these standards are flawed, and for that reason, it has requested that Cal/OSHA convene an Advisory Committee meeting in December to work on making improvements and clarifications. Additionally, Cal/OSHA posted a FAQs page and a one page fact sheet to aid in interpreting the new standards and the layers of uncertainty that they have added to an already complex regulatory landscape. 

The emergency standards, which will be effective for at least 180 days, are applicable to all California employees and places of employment except for: (1) workplaces with a single person who does not have contact with others; (2) employees working from home; (3) and employees already covered by Cal/OSHA’s Aerosol Transmissible Diseases standard (health care facilities, laboratories, etc.). 

While a number of the emergency standards track and overlap with existing regulations, there are several new obligations for employers, three of which are particularly burdensome:

  • establish, implement, and maintain a comprehensive written COVID-19 “Prevention Program that addresses numerous elements of COVID-19 health and safety obligations in the workplace (Cal/OSHA has made a Model COVID-19 Prevention Plan available);
  • offer testing, at no cost, during working hours to employees who may have been exposed in the workplace (with substantial additional testing requirements during “outbreaks”); and
  • pay employees who are excluded from the workplace due to a work-related COVID-19 case or exposure at their regular wages while out of work.

A summary of the emergency standards is below. However, a more detailed description can be found here.

Requirement for Written COVID-19 Prevention Program

An employer’s written COVID-19 Prevention Program must contain the following minimum elements:

  1. A plan for communicating to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
  2. A plan for identification and evaluation of hazards, including screening employees for symptoms and identifying workplace conditions and practices that could result in potential exposure.
  3. A plan for investigating and responding to COVID-19 cases in the workplace. This includes responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing at no cost to workers who may have been exposed. Some of these notice and testing obligations go further than current guidance from the Centers for Disease Control and Prevention and the California Department of Public Health (CDPH) (see CDPH’s COVID-19 Employer Playbook). 
  4. A process for correcting COVID-19 hazards, including correcting unsafe conditions and work practices, as well as providing effective training and instruction.
  5. Providing COVID-19 related information and training and instructions on policies and procedures to protect employees.
  6. Physical distancing requirements for employees.
  7. Face covering requirements, including an affirmative obligation to provide face coverings to employees. 
  8. Personal protective equipment and other methods to prevent and control spread and transmission.
  9. Reporting COVID-19 cases to the local health department, as well as recording and tracking all COVID-19 cases.
  10. Removing COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to maintain pay and benefits.
  11. A written plan specifying the criteria for employees to return to work after recovering from COVID-19.

New Requirements for COVID-19 “Outbreaks”

Cal/OSHA’s emergency standards also contain requirements for testing and notifying public health departments of “Multiple COVID-19 Infections and COVID-19 Outbreaks” (3 or more cases in a workplace in a 14-day period) and “Major COVID-19 Outbreaks” (20 or more cases within a 30-day period). These standards appear to apply to all workplaces regardless of size.

In the event of Multiple COVID-19 Infections and COVID-19 Outbreaks, employers must inform all employees of how they can obtain testing (whether through the employer, local health department, a health plan, or at a community testing center) and offer COVID-19 testing to all employees at the exposed workplace during the period of the outbreak or the relevant 14-day period. This testing must be offered free of charge to the employee, during employee working hours, and immediately upon being covered by this outbreak definition. This same testing must then be offered again one week later for the same employees. Thereafter, employers must provide continuous COVID-19 testing of employees who remain at the workplace at least once per week, or provide testing more frequently if recommended by the local health department. 

Similarly, if a Major COVID-19 Outbreak occurs, employers must inform all employees present at the exposed workplace during the relevant 30-day period(s) and who remain at the workplace of how they can obtain testing and offer it at no charge, during employee working hours, and twice a week or more frequently if recommended by the local health department. These outbreak requirements will continue to apply until there are no new COVID-19 cases detected in a workplace for a 14-day period.

In addition to the testing requirements, employers with either type of outbreak must exclude all COVID-19 positive employees and employees with a COVID-19 exposure from the workplace, conduct an investigation of the COVID-19 illness, and provide notice to the local health department within 48-hours of learning of the outbreak.

New Requirements for Employer-Provided Housing and Transportation

Cal/OSHA’s standards regulate how housing assignments are made, social distancing and cleaning of units. They also provide standards for employer-provided transportation.

Consequences of Non-Compliance

Employers that do not comply with the standards may face fines in accordance with Cal/OSHA’s penalty structure, which assigns varying levels of penalties for different classes of citations. Cal/OSHA has a robust online employee complaint portal and has also stepped up their auditing functions, and other enforcement mechanisms, during the pandemic.

What This Means

With the new standards going into effect immediately, California employers need to act now to assess their current pandemic health and safety protocols and revise and supplement them appropriately for compliance with the new standards, including implementing a written COVID-19 Prevention Program.

Employers should also watch for updates as Cal/OSHA may modify the standards in the coming month. Additionally, any legal challenges to the emergency standards could alter employer obligations.

For questions regarding the new Cal/OSHA standards or assistance with compliance, please contact your PPSC attorney, or any of the authors listed below. 

Again, a more detailed description of the new standards may be found here.

AUTHORS
Denise Brucker   camille Gustafson   Sierra Spitzer