Cal/OSHA Adopts Emergency COVID-19 Regulations

As California laws and regulations regarding COVID-19 related workplace protections continue to evolve, California employers must stay informed and continue updating policies in order to comply with a variety of precautionary, reporting, and recordkeeping requirements. In addition to recent legislative actions to require extended paid sick leave, workers’ compensation protections, and reporting of COVID-19 cases in the workplace in certain circumstances, Cal/OSHA has adopted emergency standards which became effective November 30, 2020.

These regulations require most California employers take a variety of actions with regard to potential COVID-19 related workplace hazards, focusing on workers not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. The regulations do not apply to employees in workplaces with only one employee who does not have contact with others person and employees working from home.

Important Definitions:

The regulations rely upon the following definitions of what is a “case” an “exposure” and an “exposed workplace.”

• COVID-19 case – a positive COVID-19 test, death due to COVID-19, or being subject to a COVID-19 related isolation order by a local or state health officials.
• COVID-19 exposure – being within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the high-risk exposure period, regardless of the use of face coverings.
• Exposed Workplace – any workplace location accessed by a COVID-19 case during the high-risk period. This includes all areas such as hallways, worksites, and common areas. It does not extend to other locations within the workplace which were not entered by the employee. The regulations define the relevant exposure period as the period between 2 days before testing positive or developing symptoms and 10 days after.

COVID-19 Prevention Program

The main component of the new emergency regulations is a requirement for employers to develop a comprehensive COVID-19 prevention program, designed to address the actual needs of the particular workplace and its experiences with exposure hazards. This plan can either be integrated into an existing Injury and Illness Prevention Program or be maintained as a separate document. The written COVID-19 prevention program must include the following elements:

1. Communication. Employers must implement a communication system allowing employees to report possible COVID-19 symptoms and exposures, employers to describe available procedures for accommodating employees with increased risk of COVID-19 related illness, provide information about access to testing, and communicate information about hazards in the workplace and the policies that address them.
2. Screening. Employers must implement a system for screening employees for and responding to employees with symptoms that effectively protects the workplace, such as requiring employees to evaluate their symptoms before reporting to work. This must also include a survey of the workplace structure and practices and how they potentially expose employees to COVID-19 hazards. Consider factors like places and times when people may congregate or come into contact with one another, presuming everyone is potentially infectious. For indoor locations, employers must consider how to improve air ventilation and increase filtration efficiency.
3. A system for investigating and verifying COVID-19 cases in the workplace. When a case has been confirmed, employers must, to the extent possible, map out potential exposures. Employees and independent contractors who have been potentially exposed must be given notice within 1 business day, while maintaining the confidentiality of those who are infected or display symptoms. Employers must offer testing at no cost to employees during working hours to all who have been potentially exposed in the workplace. Note that this requirement does not suggest that the testing must be performed on site by the employer, only that testing be paid for by the employer and done during work hours. Likely, reimbursement for out of pocket costs and paid leave for the time spent at the testing site satisfies the requirement. Consider also whether any workplace conditions may be contributing to the risk of exposure and what can be done to reduce the risk.
4. Correction of COVID-19 hazards. Employers must implement effective policies and/or procedures for correcting unsafe or unhealthy conditions, work practices, policies and procedures in a timely manner based on the severity of the hazard.
5. Training and instruction. Employers must provide effective training and instruction to employees regarding policies and procedures to protect employees from COVID-19 hazards, information regarding available benefits, how the disease is spread, methods of preventing exposure and transmission.
6. Physical distancing. Employees must be separated from other persons by at least six feet, except where an employer can demonstrate that six feet of separation is not possible and when exposure is momentary while people are in movement. Methods of physical distancing may also include arrangements such as remote work or staggered schedules.
7. Face coverings. Employers must provide face coverings and ensure they are worn properly by employees. Employers may not prevent any employee from wearing a face covering when not required unless it would create a safety hazard. Face covering requirements must also be communicated to non-employees. Employee exposure to COVID-19 hazards originating from members of the public must be minimized.
8. Other engineering controls, administrative controls, and personal protective equipment. Employer must maximize air ventilation to the extent possible, implement cleaning and disinfecting procedures, and prohibit sharing of personal protective equipment and other equipment that employees come in regular contact with to the extent possible. Areas, material, and equipment used by a COVID-19 case during the high-risk exposure period specifically must be cleaned and disinfected. Employees must also evaluate the possible need for additional protective equipment such as gloves, goggles, and face shields. When physical distancing is not possible, use solid partitions to reduce aerosol transmission.
9. Reporting, recordkeeping, and access. Employers must report information about COVID-19 cases at the workplace to local health departments if required by law. Employers must immediately report COVID-19 related serious illness or death occurring in the workplace to Cal/OSHA. Employers must maintain records to track all cases in the workplace, including the employee’s name, contact information, occupation, location where they worked, date of the last date at the workplace, and the date of the positive test. This information must be made available to employees and employee representatives, with the personal identifying information removed.
10. Exclusion of COVID-19 cases. Employers must ensure that COVID-19 cases are excluded from the workplace until return to work criteria are met. Employees who have been exposed must be excluded from the workplace for 14 days after the last known exposure. For employees who are excluded but are otherwise available for work, employers must 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. Employers may use employer-provided employee sick leave benefits for this purpose and consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law and when not covered by workers’ compensation. At the time of the exclusion, employees must be provided information about the benefits available. The guarantee of earnings and benefits only applies to those who are able to work but excluded from the workplace to protect other persons in the workplace from exposure or transmission. For employees excluded from the workplace due to COVID-19 exposure, the guarantee does not apply if the employer can demonstrate that the exposure was not work related. Moreover, employees who have not been isolated by the local health department need not be excluded if they can be temporarily assigned to work where they do not have contact with other persons until return to work criteria are met.
    1. The provision regarding the requirement to maintain pay and benefits during the employee’s exclusion, in its current version, essentially implies a new paid leave benefit separate from the already existing federal and state law programs. However, the regulations do not suggest how earnings should be calculated or whether the leave can run concurrently with other applicable paid leave available. There is also no limitation mentioned, meaning that employees may potentially be entitled to COVID-19 related paid leave on multiple occasions. This is in contrast to SB 1159’s workers’ compensation expansion, which explicitly required covered workers to exhaust paid sick leave benefits before receiving temporary disability benefits as provided by the presumption of a workplace injury.
11. Return to work criteria. Confirmed COVID-19 cases may not return to work until at least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of medication, symptoms have improved, and at least 10 days have passed since symptoms first appeared. If the individual never developed symptoms, they cannot return to work until a minimum of 10 days have passed since the date of the collection of the specimen for their first positive test. A negative test shall not be required for an employee to return to work. Employees under an isolation or quarantine order by a local or state health official cannot return to work until the quarantine has expired or the order has been lifted.

COVID-19 Outbreaks

Additional investigatory and reporting obligations are imposed on employers when there are multiple COVID-19 infections or a major outbreak in the workplace.

Multiple Infections

An “outbreak” occurs when there have been three or more COVID-19 cases in an workplace within a 14-day period or an outbreak in the place of employment has been identified by a local health department. When an outbreak occurs the employer must provide COVID-19 testing to all employees in the exposed workplace during the outbreak period, and then tested again one week later. Thereafter, testing must continue on a weekly basis until there have been no new cases detected in the workplace for a 14-day period. All testing must be provided at no cost to employees during the employees’ working hours.

Employers must ensure COVID-19 cases and employees who had COVID-19 exposure are excluded from the workplace. Upon learning of an outbreak, employers must investigate the workplace-related factors which may have contributed to the outbreak and correct any hazards. No later than 48 hours after learning of an outbreak, the employer must contact the local health department and report the number of cases, the name, contact information, occupation, location, and other necessary information, and give notice as any additional cases arise.

Major Outbreaks

20 or more COVID-19 cases in an exposed workplace within a 30-day period is considered a “major outbreak.” When a major outbreak occurs the employer must provide COVID-19 testing to all employees in the exposed workplace during the outbreak period at no cost to employees during employees’ working hours, and exclude all COVID-19 cases and employees who had COVID-19 exposure from the workplace.

Employers must investigate the workplace related factors which may have contributed to the outbreak, correct any hazards, and consider whether to halt operations until hazards have been corrected. In addition, employers must filter recirculated air with Minimum Efficiency Reporting Value (MERV) 13 or higher efficiency filters if compatible with the ventilation system. If not compatible, employers must use filters with the highest compatible filtering efficiency. Employers must also consider the need for a respiratory protection program or changes to an existing respiratory protection program.

Employers must also report the outbreak to the local public health department.

COVID-19 Prevention in Employer-Provided Housing and Transportation

Housing

Employers must ensure that in providing housing, shared units are assigned in a way to minimize COVID-19 hazards. Residents who maintain a household outside of work, such as family members, must be housed together. Residents who work in the same crew or work together at the same worksite must be housed together. Those who do not share a household or a worksite may be housed in the same unit only when no other alternative is possible.

Employers must also ensure that the premises provided are of a sufficient size and layout to permit adequate physical distancing between residents. Employers must also ensure that the common areas are effectively cleaned and disinfected at least once a day and that unwashed dinnerware is not shared. COVID-19 cases and those who have been exposed must be effectively isolated. Note, however, that that effective isolation of COVID-19 cases may include housing with other cases.

It is unclear to what kinds of employer-provided housing the regulations extend to. The definition includes any portion of any housing accommodation. Such housing may be the kind maintained in one or more buildings or one or more sites, including hotels and motels. Thus, the regulations also cover employer-provided housing that is not maintained or operated by the employer, such as hotel and motels for out of town work and/or traveling crews. However, that seems inconsistent with the requirements of ensuring certain layouts and cleaning procedures. Perhaps the regulations can be best understood as requiring employers to inquire about the accommodation’s COVID-19 policies and ensure compliance with these regulations by the entity before assignment of housing to employees. It should be noted that in the basis for finding of emergency document, the Division cited an investigation about outbreaks among farmworkers housed in crowed motel rooms, which implies that the new regulations would reach such accommodations.

Transportation

The regulations also address employer-provided transportation to and from work, and prioritize how transportation shall be provided, with the preference being that: 1) employees who reside in the same unit transported together in the same vehicle, 2) those working in the same crew or worksite must be transported together, and 3) if no alternative is available, those who do not share a household or worksite may be transported in the same vehicle.

Employers must ensure that physical distancing and face covering requirements are followed when employees are waiting for transportation, and during transportation passengers and drivers must be separated by at least 3 feet in all directions. Employers must develop and implement policies for screening and excluding drivers and passengers with symptoms prior to boarding. All high contact surfaces are cleaned and disinfected before each trip and with each change in driver. Employers must ensure that ventilation systems are maximized to let in outdoor air or leave windows open.

These requirements apply to any transportation of an employee to and from work, during the course and scope of employment, provided, arranged for, or secured by an employer. Note that these regulations may require reviewing and updating pay practices in order to compensate employees for the time spent waiting for transportation being screened for symptoms.

Cal/OSHA has posted FAQs and a one-page fact sheet on the regulation, as well as a model COVID-19 prevention program.