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 June 5, 2020, the California Division of Occupational Safety and Health, commonly known as Cal/OSHA, issued temporary emergency guidance to assist physicians and other licensed health care professionals (PLHCPs) balance the benefits of providing mandated medical surveillance examinations against the risks of potential COVID-19 exposure.
Medical surveillance is the analysis of health information to look for problems that may be occurring in the workplace that require targeted prevention. Surveillance may be based on a single case or sentinel event. It is important for employers to continue their duty to conduct medical surveillance to identify problem areas and the effectiveness of existing worksite preventive strategies. There are currently 28 Cal/OSHA standards that require employers to offer their employees medical surveillance examinations and other medical services on a specified schedule, when employees may be exposed to certain workplace hazards.
However, since some medical examinations may not be needed urgently because they are aimed primarily at detecting chronic health problems that may arise slowly within months to years, the risk of potential COVID-19 exposure during these examinations may outweigh the likely medical benefit of the examination. As such, Cal/OSHA has published Table 1, which offers guidance on the type of exposure to workplace hazards for which a medical surveillance examination may or may not be temporarily delayed. The table also provides detailed advice about specific standards and delineates the elements required at initial and periodic exams. For certain Cal/OSHA standards, the table advises PLHCPs to consider obtaining the employee’s medical history in a non-face-to-face setting if doing so may reveal information about an employee’s personal risk factors and, therefore, guide the PLHCP’s decisions about occupational exposures or using personal protective equipment.
Notably, PLHCPs should not delay a clinical evaluation when an employee reports possible overexposure or occupational illness, or when there is an “emergency” or “uncontrolled” workplace exposure. For example, a PLHCP cannot delay a respirator exam and fit test when a respirator is a necessary safeguard to prevent exposure from airborne hazards. Likewise, Cal/OSHA’s standards for bloodborne pathogens (Cal. Code Regs. Tit. 8 § 5193) should not be delayed.
If a PLHCP determines that the potential risk of COVID-19 exposure outweighs the benefit of conducting the medical surveillance examination, then the PLHCP should provide the employer with a written report explaining the reasons for this determination. Further, if certain elements of a required medical surveillance examination could not be completed due to the risk of COVID-19 exposure, Cal/OSHA recommends employers prepare a written plan describing how they will bring any postponed exams up-to-date once the COVID-19 pandemic is over. Cal/OSHA expects PLHCPs to continue to observe “best practices” for infection control, such as conducting remote patient consults and the use of questionnaires in lieu of face-to-face encounters.
The temporary emergency guidance does not relieve an employer of its duty to offer mandated surveillance exams. However, given the COVID-19 pandemic and the fact that many employees are continuing to perform “essential” jobs and tasks, employers must rely on a PLHCP’s medical judgment to comply with these medical surveillance obligations while minimizing the exposure to COVID-19.
Employers are encouraged to consult with legal counsel if they have questions regarding compliance.