Cal/OSHA Implements New Emergency COVID-19 Regulations

By Swerdlow Florence Sanchez Swerdlow & Wimmer

December 14, 2020

On November 30, 2020, the California Occupational Safety and Health Standards Board (Cal/OSHA) adopted new regulations to address the issue of COVID-19 in the workplace. These regulations have significant requirements and implications for some California employers, notwithstanding a wide variety of public health orders that may conflict. For example, the regulations require all covered employers to implement a written COVID-19 prevention program, comply with reporting and notice requirements, and provide paid time off for some employees with, or who were exposed to, COVID-19.

However, on December 14, 2020, Governor Newsom signed an Executive Order that, in effect, reduces the amount of time employees who may have been exposed to someone with the COVID virus but who are without COVID-19 symptoms must be excluded from the workplace from what was included in the November 30, 2020, regulations.

On December 18, 2020, Cal/OSHA will convene an advisory meeting at which industry and labor representatives will review the regulations, solicit feedback, and recommend updates. If this emergency regulation is one that your company feels should be adjusted or revised, this is your opportunity for public comment.

These regulations are temporary and will be in effect through May 29, 2021, but they may be revised, as noted above, and extended. Failure to comply with these regulations may result in Cal/OSHA citations and civil penalties.

This E-alert summarizes some of the requirements in these new regulations.

Who Is Covered?

The regulations apply to all employers, employees, and places of employment except:
•    workplaces with only one employee who does not have contact with others;
•    employees who work from home; and
•    employees covered by Cal/OSHA’s Aerosol Transmissible Diseases regulation (generally, certain health care facilities, laboratories, and other operations).
 
Written COVID-19 Prevention Program

These new regulations require covered employers to develop and implement a written COVID-19 Prevention Program. This program can be stand-alone or it can be included in the employer’s existing Injury and Illness Prevention Plan. The regulations contain a lengthy and comprehensive list of elements that must be included in the plan. And the government has published an approved Model COVID-19 Prevention Plan that employers can use as the starting point for developing their own plan. The model plan can be found at https://www.dir.ca.gov/dosh/dosh_publications/CPP.doc.

Employee Notice and Training

The regulations require employers to notify employees of COVID-19 exposures and cases. Of note, the regulations require employers to give notice of potential exposure within one business day to employees who may have been exposed to COVID-19, and their representatives, as well as independent contractors, or other employers who may have been present at the workplace during the period that the individual with COVID-19 was infectious. Employers, however, cannot reveal personal information about the individual infected with COVID-19.

These regulations appear to be at odds somewhat with similar state laws implemented through AB 685, which goes into effect on January 1, 2021. For example, whereas AB 685 requires written notice to employees, the Cal/OSHA regulations do not state that written notice is required.

Employers also must provide training and instruction to employees about, among other things, the employer’s procedures to protect against COVID-19 exposure in the workplace, benefits to which employees may be entitled if they contract or are exposed to COVID-19, the hazards of COVID-19, methods to protect against it, the fact that COVID-19 is infectious and ways it is spread, methods of physical distancing, the importance of combining physical distancing and face coverings, and COVID-19 symptoms and the importance of not coming to work if they have such symptoms.

Investigating and Responding to Cases

Employers are required to have a procedure in place to investigate COVID-19 cases in the workplace by verifying case status, receiving information about test results and the timing of the onset of symptoms, and recording and identifying cases.

When someone with COVID-19 in the workplace has been identified, employers must determine the day and time the person last was present at the workplace, the date of the positive test or diagnosis, and the date of the first symptoms. Employers must evaluate the person’s activities and workplace locations during the period they were infectious so they can give proper notice, as discussed above.

Offer Free Testing

Employers must offer free COVID-19 testing to all employees who were potentially exposed to COVID-19 at work, and those employees are permitted to get the test during their normal working hours. There are some additional testing requirements when there are 20 or more cases of COVID-19 at the workplace within a 30-day period.

Reporting and Recordkeeping

Employers must give notice to their local health department within 48 hours of learning of three or more cases of COVID-19, and continue to cooperate with them by providing information they request.

Any COVID-19 serious illness or death of an employee occurring in or in connection with the workplace must be reported to the DIR immediately.

Employers must record and track all Covid-19 cases, which records shall include the employee’s name, contact information, occupation, location where the employee worked, last day in the workplace, and date of a positive test. Medical information must be kept confidential, but the information, with personal identifying information removed, shall be made available to employees. Unfortunately, the regulations do not address whether the records and test results fall within Cal/OSHA’s existing requirement in Section 3204(d) that medical and exposure records be maintained for 30 years.

Exclusion From And Return To Work

Employers must ensure that employees who have COVID-19, who are subject to a COVID-19 isolation order, or who have been exposed to COVID-19 are excluded from the workplace until the return-to-work requirements have been met. While employers must offer to test employees who have been exposed to COVID-19 at the workplace, employers cannot require a negative test to return to work. Instead, the regulations require as follows:

•    An employee with COVID-19 (or who is subject to a COVID-19 isolation order) who has COVID-19 symptoms cannot return to work until each of the following has occurred:
     •    at least 24 hours have passed since a fever of 100.4 resolved without fever-reducing medication;
     •    COVID-19 symptoms have improved; and
     •    at least 10 days have passed since the onset of the first symptoms.
•    An employee who tests positive for COVID-19, but never develops symptoms, shall not return to the workplace until at least 10 days have passed since taking the test with the positive result.
•    An employee who was exposed to COVID-19 must be excluded from the workplace until ten (10) days from the last day the employee was exposed to someone with COVID-19 during the period that person was infectious. This time frame was reduced from 14 days by the December 14, 2020, Executive Order. However, if a local health official recommends a longer period of quarantine or isolation, then that longer period would be applicable.
•    An employee who has not been excluded or isolated by the local health department need not be excluded from working if the employee is temporarily reassigned to work where there is no contact with any other persons, such as working remotely, until the return-to-work requirements above are met.
 
Continuation of Pay and Benefits While Excluded From Work

For employees who are excluded from working, as described above, and who otherwise are able and available to work, the employer must continue and maintain the employee’s job status, pay, and benefits during this time as if the employee had not been removed from the workplace and their job. The employee’s sick benefits, and other public benefit payments, may be used to cover pay.

This pay requirement, however, does not apply to any period of time in which the employee is unable to work for reasons unrelated to protecting employees from COVID-19 transmission, and it does not apply when the employer can show that the employee’s exposure to COVID-19 was not work related. However, the regulations do not address how the employer must show the exposure was not work related.

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These regulations are extensive, and this E-alert highlights only some of its requirements. The emergency regulations can be found at https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Emergency-apprvdtxt.pdf.