Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On November 19, 2020, over the vigorous objections of several employers, trade associations, employer agencies, and defense counsel, the California Occupational Safety and Health Standards Board voted unanimously to pass the California Division of Occupational Safety and Health’s (Cal/OSHA or the “Division”) Emergency COVID-19 Prevention Regulation. The finalized draft will be sent to the Office of Administrative Law (OAL) on Friday, November 20, and will remain there while the OAL reviews the draft regulation for the next 10 days. The draft will then remain open for the next five days during which stakeholders may submit comments to the OAL. Once the OAL adopts a final regulation, it will be codified and enforceable by Cal/OSHA.
Doug Parker, Chief of the Division, commented that the Division will work with employers to assist in complying with the new regulation. Mr. Parker also indicated that the Division will publish guidance and FAQs sometime in the near future, as well as push for an Advisory Committee Meeting as early as next month to address ambiguities and potential infeasibilities in complying with the regulation.
What is Included in the Regulation?
The emergency regulation standard consists of five sections of which employers should be aware, addressing COVID-19 prevention, multiple COVID-19 infections and COVID-19 outbreaks, major COVID-19 outbreaks, COVID-19 prevention in employer-provided housing, and COVID-19 prevention in employer-provided transportation to and from work.
COVID-19 Prevention Program
Employers must immediately review their Cal/OSHA COVID-19 Prevention Plans to ensure compliance with the new regulation, which will likely take effect around the first week of December during the holiday shopping rush. The new regulation mandates several more onerous, potentially confusing requirements that employers must include in their COVID-19 Prevention Plans for effective implementation. They include, but are not limited to the following:
1. Communication of COVID-19 Policies and Procedures: Although employers may have already developed a process for communicating COVID-19 policies and procedures to employees, the new regulation requires several other additional provisions that employers must include, such as how they will communicate COVID-19-related hazards to their employees, and how employees can get tested for COVID-19, report symptoms and/or COVID-19-positive tests, and how employees at higher risk of the virus can request an accommodation.
Employers should keep in mind that the Division’s position that once a non-work-related COVID-19 case enters the worksite, it is deemed to be a worksite hazard. As such, employers must develop procedures to notify and protect employees from this community COVID-19 case.
2. Procedures for Identifying COVID-19 Hazards: The employer must have a process to identify and evaluate COVID-19 hazards, which includes:
- Allowing employees and their representatives to participate in identifying and evaluating hazards;
- A process to conduct health screenings;
- Procedures to respond to COVID-19 cases;
- A Job Hazard Assessment (JHA) to determine where potential COVID-19 hazards may exist, such as: (i) locations where employees must work in close contact to perform job tasks; (ii) locations where employees congregate (including meetings, time clocks, bathrooms, hallways, aisles, elevators, break rooms, cool-down rest areas, or waiting areas); (iii) locations where employees cannot wear face masks or respirators due to other job hazards; and (iv) locations where employees must share equipment or tools.
- The employer’s plans for maximizing mechanical ventilation in the workplace, including the use of higher-efficiency filters, if compatible with the system.
- The employer’s procedures for complying with local health orders of the county and the California Department of Public Health.
- The employer’s measures to evaluate existing prevention controls for their effectiveness.
- The employer’s procedures for conducting periodic inspections through the facility to determine the effectiveness of implementation.
3. Procedures for Investigating COVID-19 Cases: An employer must include, within the COVID-19 Prevention Plan, procedures for investigating and responding to COVID-19 cases in the workplace. These processes break down into two main types of investigations—first, identifying the potential source of the transmission of the COVID-19-positive employee, and second, the employer’s contact-tracing investigation to identify others who may have been exposed to the virus. The employer must still comply with AB 685, which prescribes broad notification to employees (including the employees of third parties) who may have come into contact with the COVID-19-positive individual. AB 685 takes effect on January 1, 2020.
4. Procedures for Correcting Hazards: An employer must include the processes and procedures for correcting COVID-19-related hazards identified in the course of its inspection after either learning of a COVID-19 positive case or concerns raised by employees. An employer’s correction of hazards is central to demonstrating the effectiveness of the employer’s Prevention Plan.
5. Training: The employer needs to include policies for training on several topics relating to COVID-19, including the following:
- The COVID-19 Prevention Plan.
- The benefits available to employees in the event of a COVID-19 infection. Based on comments made at the public hearing, the Division believes that many employers have not followed previously issued guidance and laws and are not providing benefits to employees, which has in turn deterred employees from reporting COVID-19 exposures and positive cases.
- Methods for preventing COVID-19 exposures, including frequent sanitizing, hand-washing, distribution of hand sanitizer, wearing of face coverings, enforcing social distancing, and disinfecting common areas, tools and equipment. The employer must also provide additional breaks for employees to wash their hands throughout the day, regardless of industry.
- Methods of how the virus may transmit in the workplace, including through commonly used items and equipment, failure to use face masks and respirators, and failing to adhere to social distancing requirements.
- Social distancing protocols and procedures.
- Procedures for enforcing face coverings or face masks, and the employer’s procedures for safeguarding employees from COVID-19 where face coverings or face masks are not possible. Where respirators are required, the employer must provide procedures outlining how the employer will comply with Cal/OSHA’s respiratory protection program requirements.
- How and when the employer will implement COVID-19 testing, or where the employee may obtain COVID-19 testing.
- Instructions for quarantining in the event of a potential exposure, including when an employee exhibits signs or symptoms of COVID-19 or is awaiting a COVID-19 test result after exhibiting signs or symptoms or due to a potential exposure.
6. Physical Distancing: The employer must revise its policies on physical distancing tailored to the specific areas of the worksite to ensure the effectiveness of the Prevention Plan.
7. Face Coverings/Face Masks: The employer must include, within the Prevention Plan, its policies and procedures for enforcing face covering or face masks, including a description of how the employer will provide these masks and enforce its face mask/face covering wearing policy.
8. Engineering, Administrative and Personal Protective Equipment (PPE) Controls: The employer must evaluate and consider additional engineering, administrative, and PPE controls for minimizing the risk of COVID-19 infections, including the following:
- For work areas that will use Plexiglas, instruction on how the Plexiglas will be utilized to reduce exposure, including procedures for the routine cleaning and disinfecting of the Plexiglas, and other measures taken to create physical barriers in the workplace.
- The employer’s procedures for cleaning and disinfecting in the workplace, including routine and deep cleaning after a COVID-19 case.
- The employer’s policies and procedures for prohibiting the sharing of commonly used items in the workplace, and if such items must be shared, the procedures for cleaning and disinfecting these items cleaning between uses.
Additionally, the employer must provide proper PPE including gloves, face shields, safety goggles, and must evaluate the need for respirators when the employer cannot effectively enforce physical distancing in the workplace. If the employer must adopt respirators such as N95s, the employer must create a respiratory protection program with fit testing and a medical test to clear the employee’s use of respirators.
9. Recordkeeping and Reporting Obligations: The employer must adopt strict recordkeeping and reporting guidelines for COVID-19, including the employer’s procedures for notifying the Department of Public Health about an outbreak, procedures for recording work-related COVID-19 cases on Cal/OSHA 300 logs, and procedures for reporting work-related hospitalizations or fatalities to Cal/OSHA.
10. Exclusion of COVID-19 Cases: Employers must ensure that COVID-19 cases are excluded from the workplace until return-to-work requirements are met. These provisions are consistent with current CDC guidelines. This requirement includes that the employer allow employees with work-related claims to maintain their earnings, seniority and all other employee rights and benefits, including their right to former job status, which indicates it requires a “protected leave” similar to that under the ADA and other areas of law.
11. Return-to-Work Criteria: The return-to-work criteria provisions are mostly consistent with the CDC’s including that an exposed employee should be quarantined for 14 days, and a COVID-19 case should be isolated for a minimum of 10 days, or until symptoms resolve and the employee is 24 hours free of fever without the use of any medication. The California provision specifically differs from the CDC’s by restricting employers from requiring a negative test prior to returning employees to the workplace.
Multiple COVID-19 Infections and COVID-19 Outbreaks.
In addition to the new requirements of maintaining a policy, the regulation also requires an employer to take extra steps to address potential outbreaks if: there are three or more COVID-19 cases in an exposed workplace within a 14-day period; a local health department has identified the workplace as the location of a COVID-19 outbreak; or a major COVID-19 outbreak (20 or more cases) occurs at the workplace within a 30-day period.If any of these situations arise, the employer must conduct additional investigations and report the outbreak to the local health department.Additionally, the employers must provide COVID-19 testing if any of the three scenarios described above occur. There are specific testing requirements mentioned in the regulation that many employers will find onerous and potentially infeasible to implement.
COVID-19 Prevention in Employer-Provided Housing and Transportation to and From Work
The emergency standard requires those employers that provide housing for their workers to comply with additional measures and additional provisions that may apply where the employer chooses to provide transportation.
What Does This Mean For Employers?
Particularly concerning about the new regulation are the severe implications on employers’ wage and hour and leave and accommodation policies and practices. As noted above, the regulation requires employers to exclude COVID-19-positive employees and those who have been exposed to COVID-19 from the workplace until the return-to-work requirements are met. During this time, employers may be required to maintain these employees’ earnings, seniority, and other rights and benefits. Yet, for instance, the regulation does not explain how an employee’s earnings should be calculated if the employee is an hourly, non-exempt employee.
In addition, employers will need to carefully review their pay practices with respect to compensating time spent testing employees, and for employers providing transportation, time spent screening and excluding drivers and riders with COVID-19 symptoms.
What is Next?
Cal/OSHA’s new COVID-19 emergency regulation provides the blueprint by which Cal/OSHA’s investigators will conduct inspections of worksites and the deficiencies they will be trained to identify in the course of an inspection. It also opens the door to potential future litigation in other areas such as wage and hour and leaves, and can lead to an increase in Private Attorney General Action (PAGA) safety-related claims. As the number of COVID-19 cases continues to rise nationally and in the state of California, we expect that the emergency regulation will be the agency’s main enforcement priority in the coming month, and that we will likely see an increase in enforcement. Employers should review and consider the effectiveness of their COVID-19 Prevention Plans, and where necessary, consult with an attorney specializing in workplace safety and health.
Littler’s Workplace Policy Institute and OSHA Practice Group will provide additional information on the regulation as it is forthcoming. In the interim, given the significant changes employers are required to make pursuant to the order, employers with questions are advised to consult counsel.