Cal/OSHA Emergency Standard related to COVID 19 – a short-ish discussion

On November 20, 2020, the Cal/OSHA Standards Board adopted Emergency Standards related to COVID-19 prevention in the workplace. The Standards were sent to another part of the state government – the Office of Administrative Law (OAL) on Friday, November 20, where the OAL will review it until at least November 30. The draft Standards will remain open for five days after that 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 (so, December 5?).

**The OAL now lists this as APPROVED. **

Honestly, while some parts of this rule are new – the paid time off requirement and the testing in response to positive cases, for example – I anticipate that you already had something similar to what Cal/OSHA wants in place already for the protocols, especially if you operate in a Bay Area county. So, pat yourself on the back, exalt in your glory, get a big cup of coffee and take a close look at your written plan and the protocols to ensure you are in compliance with these rules. And we should know in a few days if these become Standards enforceable by Cal/OSHA.

All employees and places of employment are covered by this emergency standard, except:

  • A worksite with one employee who does not have contact with any other persons.
  • Employees working from home.
  • Employees already covered by Cal/OSHA’s aerosol transmission standard.

PAID TIME OFF. If an employee must be off work for having or being exposed to COVID-19 and has no paid time off available, the employer must continue to pay them.  The employer can require use of paid sick leave, PTO, FFCRA, or other sources, but if they have exhausted those benefits, the employer must keep paying them and to provide them information about benefit entitlements. 

The regulation provides that employers shall “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status.” Of note, this requirement does not appear to contain a maximum number of hours per year, meaning an employee could potentially be excluded from the worksite multiple times. The employer is required to maintain earnings and benefits during each period.

There are two potential exemptions to this “maintained earnings” requirement:

  • The requirement does not apply to any period during which the employee is unable to work for reasons other than protecting persons at the workplace from COVID-19 transmission.
  • The requirement does not apply where the employer “demonstrates” that the COVID-19 exposure is not work-related. While it may seem like you would be able to do this easily, can you? Keep in mind the Cal/OSHA’s position that once a non-work-related COVID-19 case enters the worksite, it is deemed to be a worksite hazard.

EXCLUDED FROM WORKSITE. COVID-19 Cases must be excluded from the worksite until they have satisfied return to work criteria.  The new standard requires employers to ensure that “COVID-19 cases” (those who have tested positive or have an order to isolate from public health authorities) are excluded from the worksite until they have satisfied the return to work criteria.

If an employee is exposed, they are to be excluded from the workplace for 14 days after the last known exposure.  However, if the employee does not contract COVID-19, the employee does not need to be excluded if the public health department does not require isolation, if the employee is temporarily reassigned to work where they do not have contact with other persons.

RETURN-TO-WORK CRITERIA. Before a worker who tested positive or was ordered to isolate can return to work, the workers must satisfy certain criteria. 

COVID-19 Cases with Symptoms. Employees who are COVID-19 cases with symptoms shall not return to work until:

  • At least 24 hours have passed since a fever of 100.4+ has resolved without the use of fever-reducing medications.
  • COVID-19 symptoms have improved; and
  • At least 10 days have passed since symptoms first appeared.

COVID-19 Cases Without Symptoms.  COVID-19 cases who tested positive but never developed symptoms shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.

Orders to Isolate or Quarantine. If a public health authority issues the order to isolate or quarantine, the employee shall not return to work until either period of isolation or quarantine is lifted. If no period is specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.

Of note (!) the new emergency standard states that negative COVID-19 test shall not be required for an employee to return to work. Therefore, California employers will not be permitted to insist that COVID-19 cases take a test before returning to the job.

WRITTEN COVID-19 PREVENTION PROGRAM. California employers must prepare, implement, and maintain a Written COVID-19 Prevention Program (WCPP) like an IIPP. You can either have a standalone WCPP or integrate it into your existing IIPP. If you have had employees at a worksite, you likely already have a written COVID-19 Plan, likely in compliance with your County’s Public Health guidance and that of the state. You will need to take a close look at what Cal/OSHA requires for this plan it to make sure your plan contains all the information now required.

The required elements as outlined by Emergency Standard for WPPs include the following:

  1. System for communicating information about your policies and procedures.
  2. Identification and evaluation of COVID-19 hazards.
  3. Investigating and responding to COVID-19 cases in the workplace.
  4. Correction of COVID-19 hazards.
  5. Training and instruction.
  6. Physical Distancing.
  7. Face coverings.
  8. Other engineering controls, administrative controls, and personal protective equipment.
  9. Reporting, recordkeeping, and access.
  10. Exclusion of COVID-19 cases.
  11. Return to work criteria.

NOTICE OF POTENTIAL COVID-19 EXPOSURE AND CASES. If you have had employees at the worksite over the past 8 months, you have likely faced the need to tell other employees about exposure and cases. The Emergency Standards repeat some of what you have already been doing, but it is important to review your process.  The new standard requires employers give notice of the potential COVID-19 exposure within one business day to all employees who may have been exposed, their authorized representatives, and independent contractors and other employers who were present during the high risk exposure period. The high-risk exposure period generally begins 48 hours before onset of symptoms or specimen for the positive test.  

The Emergency Standard does not require that the notice be in writing, but you should do it that way.  AB 685 (the Cal/OSHA law taking effect January 1) will required it.  And the best way to show you complied with the rules is to have the announcement in writing and not rely on a script or someone’s recollection. Also, AB 685 identifies a slightly different group who must receive this notice, as it specifies all employees (as well as their exclusive representatives) and employers of subcontracted employees who were on premises at the same worksite, not independent contractors or just those employees who may have been exposed.

The Standard confirms that the notice must be given without revealing any personal identifying information of the COVID-19 case. We already knew this was the expectation given the DFEH’s announcement on the issue. So, identifying information must be kept confidential – even if it seems “everybody knows!”  The identity of the individuals and their medical records related to COVID-19 may be required to be provided to the local health department, CDPH, the Division, the NIOSH, or as otherwise required by law.

If there is an outbreak at a worksite (see below, but if you have three cases, the term “outbreak” may apply!), both AB 685 and the new Standard require the reporting of such confidential information to the local public health department within 48 hours of the outbreak.  The Standard also requires employers to report to the Division of Industrial Relations any COVID-19 related serious illnesses or deaths that occur in the workplace or in connection with employment. Employers must also ensure they are recording and tracking the appropriate information for all COVID-19 cases in accordance with this new standard.

And the notice must also include information about the employer’s cleaning and disinfection protocols.

PHYSICAL DISTANCING. This should not be new anyone reading this, but just in case. The Emergency Standard provides that all employees shall be separated from each other by at least six feet. There are two exceptions to this requirement: (1) where the employer can demonstrate that six feet of separation is not possible, and (2) momentary exposures while employees are in movement.

If the employer demonstrates that it is not possible to maintain a distance of at least six feet, individuals shall be as far apart as possible. But you will have to show why.  And at fixed work locations where it is not possible to maintain physical distancing, the employer shall install “cleanable solid partitions” that reduce transmissions between employees.

The Standard confirms that the keeping the number of people low is ideal.  Other methods of physical distancing include telework or other remote work arrangements, reducing the number of persons in an area at one time, staggered arrival and departure, and adjusted work processes. And, again, if you have people in a workplace, you will need to have cleaning and disinfecting procedures.

FACE COVERINGS AND PERSONAL PROTECTIVE EQUIPMENT (PPE).  Under the Standard, employers must provide face coverings and ensure that they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, or when required by public health authorities. The Standard clarifies that face shields are not a replacement for face coverings, although they may be worn together for additional protection.

An employer cannot prevent an employee from wearing a face covering when not required unless it would create a safety hazard.

And an employee does not need to be required to wear a face covering:

  • when an employee is alone in a room,
  • while eating and drinking, provided employees are at least six feet apart
  • when the employee is wearing respiratory protection
  • if the employee who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing impaired person (but they must wear an effective alternative, such as a face shield with a drape on the bottom
  • Specific tasks that cannot feasibly be performed with a face covering.

However, even if a person fits under one of the exceptions and cannot wear a fact covering, they must be at least six feet apart from others unless the unmasked employee is tested at least twice weekly for COVID-19.

The Standard says that the employer must provide the face coverings; it does not address whether the employee can bring their own from home. We suggest that the employer provide the coverings to ensure their efficacy. 

TESTING. All employers have new testing obligations, and if there is an outbreak, there are additional responsibilities. 

  • If testing is required under any part of the new Standard, the employer shall inform the effected employees of the reason for the COVID-19 testing and the possible consequences of a positive test.
  • When there has been even one COVID-19 case in the workplace, the employer must offer free COVID-19 testing during working hours to all employees who have potential COVID-19 exposure in the workplace.
  • Employers may not use COVID-19 testing as an alternative to face coverings when face coverings are otherwise required.

OUTBREAKS. If your workplace has an outbreak, you need to check with your local Public Health rules, the requirements of AB 685, SB 1159, and this new Standard!

“Multiple COVID-19 Infections and COVID-19 Outbreaks,” means the local public health department has determined the workplace has had an outbreak, or when there are three or more COVID-19 cases in an exposed workplace within a 14-day period.  In this situation, the employer must provide COVID-19 free 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 during employee working hours, and immediately upon being covered by this outbreak definition. Employers must then offer this same testing again one week later for the same employees. After the first two required COVID-19 tests, employers shall 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.

“Major COVID-19 Outbreaks,” means there are 20 or more COVID-19 cases in an exposed workplace within a 30-day period. If a “Major COVID-19 Outbreak” occurs, the employer must provide free testing for all employees present at the exposed workplace during the relevant 30-day period(s) and who remain at the workplace. This testing must be offered during employee working hours, and twice a week or more frequently if recommended by the local health department.

Under either definition of an outbreak, if there is one, the employer must exclude all COVID-19 cases and employees with a COVID-19 exposure, conduct an investigation of the COVID-19 illness, and provide specific notice to the local public health department within 48-hours after knowledge of the outbreak.

Finally, under either definition of outbreak, the requirements of the outbreak apply until there are no new COVID-19 cases detected in a workplace for a 14-day period.

EMPLOYER-PROVIDED HOUSING AND TRANSPORTATION.  For employers that provide housing and transportation to employees, there are some new rules:   

If you provide housing for employees, you will be required to implement priority housing assignments based on individuals who work together on the same crew or shift. Additionally, you must be able to ensure sufficient space in the units to permit social distancing while the employees are in the various units, and you are responsible for ensuring the units are cleaned at least once a day. If residents are exposed to COVID-19, you must isolate that employee by providing a private bathroom, sleeping area, cooking, and eating facility.

If you provide transportation, employees must be screened before boarding, sit at least three feet apart, and wear face coverings during transportation.

***

Honestly, while some parts of this rule are new – the paid time off requirement and the testing in response to positive cases, etc. – I anticipate that you already had something similar to what Cal/OSHA wants in place already for the protocols. So, pat yourself on the back, exalt in your glory, get a big cup of coffee and take a close look at your written plan and the protocols to make sure you are in compliance with these rules. And we should know in a few days if these become Standards enforceable by Cal/OSHA.

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