Cal/OSHA has unanimously passed “Emergency COVID-19 Prevention Regulations,” which provide strict worker protections and serious obligations for California employers. The regulations, approved by the Office of Administrative Law, became effective November 30, 2020.
Who Do the Regulations Apply To?
Most workers in California, with a few exceptions. The regulations do not apply to employees working from home, sites where one employee does not have contact with others, and employees when covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.
What Must California Employers Do to Comply With the Regulations?
- Establish and maintain an effective, written COVID-19 Prevention Program;
- Identify COVID-19 hazards, based on input from employees, and correct any hazards identified;
- Engage in contact tracing following any positive case that involved potential workplace exposure, and then notify and provide testing to potentially exposed employees;
- Require physical distancing and mask wearing, improve ventilation, and maximize outdoor air;
- Exclude COVID-19 positive and COVID-19 exposed workers from the workplace;
- Not allow workers with COVID-19 or at high risk of exposure to return to worksites until their quarantine ends, and maintain pay and benefits for quarantined employees, unless the employer can demonstrate the exposure was not work related (employers may use employer-provided sick leave benefits for the purpose of maintaining pay);
- Report all outbreaks—defined as three or more cases in two weeks—to the public health department, provide continuous testing to all on-site employees (for 20 or more cases in 30 days, employers must provide twice-a-week testing);
- In employer-provided housing, space beds six feet apart, eliminate the use of bunk beds, and disinfect daily; and
- In employer-provided transportation, screen workers before boarding, and require them to sit three feet apart and wear face coverings.
Requirements for an Effective, Written COVID-19 Prevention Program
The regulations provide significant detail regarding the written program, which must include:
A system for communicating, in a form readily understandable by its employees and without fear of reprisal: (a) possible COVID-19 exposures and hazards; (b) policies for accommodating employees with medical or other conditions that put them at increased risk of severe COVID-19 illness; (c) information about access to COVID-19 testing; and (d) information about COVID-19 hazards and the employer’s COVID-19 policies and procedures, to employees and to other employers, persons, and entities within or in contact with the employer’s workplace.
The identification and evaluation of COVID-19 hazards, which must: (a) allow employees and authorized employee representatives to participate in the process of identifying hazards; (b) include the development and implementation of a process for screening employees for and responding to employees with COVID-19 symptoms; (c) develop COVID-19 policies and procedures to respond effectively and immediately to individuals in the workplace who have COVID-19 to prevent the risk of transmission; (d) conduct a workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards; (e) for indoor locations, evaluate how to maximize outdoor air and whether it is possible to increase filtration efficiency to the highest level compatible with the existing ventilation system; (f) include a review of applicable orders and guidance from state and local health departments related to COVID-19 hazards and prevention; (g) evaluate existing COVID-19 prevention controls at the workplace and the need for different or additional controls; and (h) include periodic inspections to identify unhealthy conditions, work practices, and work procedures related to COVID-19 and to ensure compliance with COVID-19 policies and procedures.
Investigating and responding to COVID-19 cases in the workplace. Employers must have an effective procedure to investigate COVID-19 cases in the workplace. This includes procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases.
A process for effectively investigating and responding to COVID-19 cases in the workplace, which must: (a) include procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases; (b) when there has been a COVID-19 case in the workplace, determine when the individual was last present, was first experiencing symptoms, and was tested, who may have had exposure to the individual, give notice within one business day to employees and contractors who may have been exposed (without revealing any personal identifying information about the individual with COVID-19), offer COVID-19 testing at no cost to potentially exposed employees during their working hours and provide them information on benefits, and investigate whether any workplace conditions could have contributed to the risk of exposure and steps to reduce exposure; (c) keep the personal identifying information of COVID-19 cases or persons with COVID-19 symptoms confidential; and (d) keep any medical records resulting from this process confidential.
The correction of COVID-19 hazards, which must include the implementation of effective policies for correcting any unsafe or unhealthy conditions, work practices, policies and procedures in a timely manner based on the severity of the hazard.
Training and instruction on: (a) the employer’s COVID-19 policies and procedures for protecting employees against hazards; (b) information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws including workers’ compensation law, the Families First Coronavirus Response Act, Labor Code sections 248.1 and 248.5, Labor Code sections 3212.86 through 3212.88, local governmental requirements, the employer’s own leave policies, and leave guaranteed by contract); (c) the fact that COVID-19 is an infectious disease that can be spread through the air, may be transmitted when a person touches a contaminated object and then touches their face, and that an infectious person may have no symptoms; (d) methods of distancing of at least six feet and the importance of combining physical distancing with the wearing of face coverings; (e) the fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective; (f) the importance of effective handwashing and using hand sanitizer, and that hand sanitizer does not work if the hands are soiled; (g) the proper use of face coverings and that they are not respiratory protective equipment; and (h) COVID-19 symptoms, and the importance of not coming to work and obtaining a COVID-19 test if the employee has COVID-19 symptoms.
Physical distancing, including through the use telework or other remote work arrangements; reducing the number of persons in an area at one time, including visitors; visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path of travel; staggered arrival, departure, work, and break times; and adjusted work processes or procedures, such as reducing production speed, to allow greater distance between employees.
The use of face coverings, including: (a) providing clean and undamaged face coverings and ensuring they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person; (b) when employees are exempt from wearing face coverings (e.g., due to a medical or mental health condition); (c) procedures for employees not wearing face coverings; (d) allowing employees to wear face coverings unless it could create a safety hazard; (e) measures to communicate face covering requirements to non-employees; and (f) developing COVID-19 policies and procedures to minimize employee exposure to COVID-19 hazards originating from any person not wearing a face covering. Exceptions to the face coverings requirement are limited to the following:
- When an employee is alone in a room.
- While eating and drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent possible.
- Employees wearing certain respiratory protection as required by other regulations.
- Employees 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.
Other engineering controls, administrative controls, and personal protective equipment. At fixed work locations where it is not possible to maintain the physical distancing requirement at all times, the employer must install cleanable solid partitions that effectively reduce aerosol transmission between the employee and other persons. Employers must implement ventilation, cleaning and disinfecting procedures, the improvement of handwashing facilities, and the use of personal protective equipment (PPE). Employers must prohibit the sharing of personal protective equipment and to the extent feasible, items that employees come in regular physical contact with such as phones, headsets, desks, keyboards, writing materials, instruments, and tools. When it is not feasible to prevent sharing, sharing must be minimized and such items and equipment must be disinfected between uses by different people. Sharing of vehicles must be minimized to the extent feasible, and high touch points (steering wheel, door handles, seatbelt buckles, armrests, shifter, etc.) must be disinfected between users.
Reporting, recordkeeping, and access. Employers must report information about COVID-19 cases at the workplace to the local health department whenever required by law, and must provide any related information requested by the local health department. Employers must report immediately to the Division any COVID-19-related serious illnesses or death of an employee occurring in a place of employment or in connection with any employment. Employers must maintain records of the steps taken to implement the written COVID-19 Prevention Program.
The exclusion of COVID-19 cases from the workplace and continuation of pay and benefits for excluded workers. Employers must ensure that COVID-19 cases are excluded from the workplace until the return to work requirements of the regulations are met. They must exclude employees with COVID-19 exposure from the workplace for 14 days after the last known exposure. For employees excluded from work who are otherwise able and available to work, employers must maintain an employee’s earnings, seniority, and benefits as if the employee had not been removed from their job. 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.
Exceptions to the requirement to continue pay and benefits: 1) if the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission; or 2) where the employer demonstrates that the COVID-19 exposure is not work-related.
Return to work criteria, including for symptomatic COVID-19 cases and non-symptomatic COVID-19 cases.
- COVID-19 cases with COVID-19 symptoms 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 fever-reducing medications;
- COVID-19 symptoms have improved; and
- at least 10 days have passed since COVID-19 symptoms first appeared.
- COVID-19 cases who tested positive but never developed COVID-19 symptoms may 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.
Do I Have to Provide the Written Prevention Program to My Employees?
Yes. The written COVID-19 Prevention Program must be made available at the workplace to employees, authorized employee representatives, and representatives of the Division immediately upon request. Employers must keep a record of and track all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. Medical information must be kept confidential. This information must be made available to employees, authorized employee representatives, or as required by law, with personal identifying information removed.
Cal/OSHA has provided a model written COVID-19 Prevention Program which can be downloaded here.
What If My Business Fails to Comply?
Employers who violate the regulations may be subject to civil penalties.
The regulations require California employers to comprehensively assess their workplaces and policies for compliance. At Duggan McHugh Law Corporation, we keep apprised of the latest developments so we can assist our clients to navigate the ongoing challenges of COVID-19 in the workplace.