California employers must now comply with a new set of emergency coronavirus (COVID-19) prevention regulations, which include a written prevention program, requirements for outbreaks and major outbreaks, and prevention measures in employer-provided housing and transportation.
California’s Office of Administrative Law (OAL) approved the California Occupational Safety and Health Standard Board’s proposed Emergency COVID-19 Prevention Regulations (Regulations) on November 30, as expected. The OAL’s approval follows substantial public comment, including a multitude of employer concerns ranging from Cal/OSHA’s jurisdiction to even impose certain elements of the rule (e.g., the requirement to continue pay and benefits to all workers excluded from the worksite for COVID-19-related reasons), to the seemingly daunting logistics of providing required COVID-19 testing at “no cost” to a swath of potentially exposed employees.
Nonetheless, with the OAL now having filed the new Regulations with the California secretary of state, the Regulations are effective and California employers must comply. Per Cal/OSHA’s website, the Regulations will remain in effect through October 2, 2021. In the meanwhile, permanent regulations will go through the formal rulemaking process.
The Regulations include five major components:
The Regulations’ written plan requirement closely follows Cal/OSHA’s previous guidelines, which already required employers to implement a written COVID-19 prevention program as a supplement to their injury and illness prevention plans. This requirement applies to all employers and places of employment, with the following exceptions:
System for Communication
Employers must develop a system for communicating (1) employee reports of COVID-19 symptoms and possible exposure without fear of reprisal; (2) procedures and policies for accommodating employees with increased risk; (3) information about access to COVID-19 testing and, if the employer is required to provide testing under this standard, the reasons for the test and the consequences of a positive test; and (4) information on COVID-19 hazards and the employer’s relevant policies and procedures.
Identification and Evaluation of COVID-19 Hazards
Employers must conduct an evaluation of COVID-19 hazards that includes participation from employees and their authorized representatives.
Investigating and Responding to COVID-19 Cases in the Workplace
Employers must implement effective procedures to investigate positive cases of COVID-19 in the workplace. Notably, employers are required to offer COVID-19 testing—at “no cost” and during “working hours”—to all employees who were potentially exposed. The Regulations also contain provisions that closely follow recently passed AB 685’s language, which requires notice to workers who were present at the worksite during the infectious period. While AB 685 required notice within “24 hours,” the new Regulations require notice within “one business day.” It is unclear at this point whether Cal/OSHA views these notice periods as materially different.
Training and Instruction
Employers must provide employees with training on COVID-19, related benefits, physical distancing, face covering, personal hygiene, and the importance of isolating when possibly infected.
All employees must be separated from other persons by at least six feet, except where an employer can demonstrate it is not possible, and except for momentary exposure while persons are in movement. This language reads more stringently than most previous local and statewide orders, which were generally based on a “practicability” or “feasibility” standard. Employers with employees stationed closer than six feet from one another should be prepared to show that compliance is not possible.
Employers must provide face coverings and ensure, with limited exceptions for medical issues, that employees wear them properly over the nose and mouth when indoors, when outdoors and less than six feet away from another person, and where required by orders from the California Department of Public Health or local health department. Employers must also ensure that face coverings are clean and undamaged. Furthermore, a face shield is not a substitute for a face covering, though they may be worn together.
Employers must communicate face covering requirements to nonemployees on the employer’s premises (a practice that is largely already in place).
Other Engineering Controls, Administrative Controls, and Personal Protective Equipment
The Regulations set forth additional controls as well, including partition requirements where six feet of physical distance is not possible between workstations, improved ventilation systems, and policies that prevent sharing of personal protective equipment (PPE) and other equipment (or otherwise ensure routine disinfection).
Reporting, Recordkeeping, and Access
Employers must report COVID-19 cases to the local public health agency when required by law. Also, they must immediately report any COVID-19-related serious illness or injury at the workplace or in connection with employees to the Division of Occupational Safety and Health (DOSH). Employers must maintain records and track all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, date of the last day at the workplace, and date of a positive COVID-19 test. This information should be made available to employees and authorized employee representatives with personal identifying information removed.
Furthermore, employers must document and maintain records of the steps taken to implement their written COVID-19 prevention programs. The written COVID-19 prevention program should be made available at the workplace to employees, authorized employee representatives, and DOSH representatives immediately upon request.
Exclusion of COVID-19 Cases
One of the more controversial aspects of the new Regulations is the requirement that employers exclude from the workplace COVID-19 cases and exposures. The new Regulations go beyond simple exclusion to require employers to maintain an employee’s pay, seniority, and benefits as if the employee missed no work at all. Employers, however, are permitted to use employer-provided employee sick leave benefits and public benefit payments to maintain employees’ earnings.
Return to Work Criteria
The Regulations further set forth specific criteria for when individuals with COVID-19 or COVID-19 symptoms can return to work. Individuals cannot return to work until all of the following criteria are met:
The Regulation further expressly states that employers cannot require a negative COVID-19 test before permitting an employee to return to work. This requirement is premised on the potential for some employees to continue to test positive months after their diagnosis despite no longer being infectious.
Employees who tested positive for COVID-19 but never developed symptoms must not return to work until 10 days have passed since the date of specimen collection of their first positive COVID-19 test.
This standard applies when there are three or more cases of COVID-19 in a workplace within a 14-day period. If so, the employer must provide COVID-19 testing to all employees, except those who were not present during the 14-day period, at no cost to employees and during the employees’ working hours. All covered employees must be tested immediately, and then again one week later. After the first two tests, employers must provide testing for all employees who remain at the workplace, at least weekly or more frequently if recommended by the local health department, until the workplace goes 14 days without a positive test.
In addition to the contact tracing, quarantining, and investigation requirements in place for all cases, in case of an outbreak, the employer must immediately perform a review of potentially relevant COVID-19 policies, procedures, and controls and implement changes as needed to prevent further spread of COVID-19. The investigation and review must be documented, and will need to be repeated for every 30-day period that the outbreak continues.
This standard applies when there are 20 or more cases of COVID-19 in a workplace within a 30-day period. Employers must provide testing at no cost to employees during the employees’ working hours, and provide COVID-19 testing twice a week, or more frequently if recommended by the local health department, to all employees present at the exposed workplace during the relevant 30-day period(s) and those who remain at the workplace.
In additional the prior requirements, the employer must do the following:
The Regulations have extensive requirements for employer-provided housing, including the requirement that beds be spaced at least six feet apart in all directions and positioned to maximize the distance between occupants’ heads.
The Regulations also have extensive provisions that apply to employer-provided transportation to and from work. Vehicle operators and any passengers must be separated by at least three feet in all directions, and all must wear face coverings. All high-touch surfaces used by passengers must be cleaned in between each trip, and high-touch surfaces used by drivers must be cleaned in between drivers. Furthermore, employers must ensure that the ventilation system is set to maximize outdoor air and the windows are kept open, subject to some exceptions.
With the Regulations now in effect, employers should quickly ensure that their written programs and overall practices are in keeping with these new requirements. Various aspects of the Regulations remain unclear, and employers likely will have many questions and concerns as to whether their policies and practices satisfy Cal/OSHA’s requirements and expectations. As these questions arise, employers should contact their Cal/OSHA counsel to better understand how the department will look to enforce the new Regulations and their many requirements.
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Jonathan L. Snare