California’s Occupational Safety and Health Standards Board has passed emergency regulations requiring employers to implement a detailed written COVID-19 Prevention Program and specifying provisions which must be included. These include new requirements that go beyond those imposed by existing federal, state and local statutes, ordinances and orders, including (but not limited to):
- A requirement to ensure that employees excluded from the workplace due to COVID-19 symptoms or exposure, or a positive COVID-19 test, maintain their earnings while excluded;
- A requirement to provide no-cost COVID-19 testing to employees exposed to infected co-workers;
- A prohibition against requiring excluded employees to test negative before they can return to work (although the employee can and must be fever-free for at least 24 hours, without using fever-reducing drugs and at least 10 days has passed since the onset of symptoms); and
- Specific requirements for employers that lodge or transport their employees.
The emergency regulations are effective immediately and will continue in effect for 180 days while permanent regulations are under consideration. The new regulations apply to all California employees, except those working alone without contact with other persons, working from home, or working in workplaces (such as hospitals, medical offices and medical labs) which are covered by existing regulations applicable to workplaces at high risk for transmission of airborne diseases.
The regulations require covered employers to establish a written COVID-19 Prevention Program which must include the following:
System for Communicating: The Program must include an easy-to-understand form for employees to report, without fear of reprisal, COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards at the workplace. It must describe procedures or policies for accommodating employees with medical or other conditions that put them at increased risk from COVID-19, and must provide information about accessing COVID-19 testing.
Identification and Evaluation of COVID-19 Hazards: The Program must include a process for screening employees, and for responding to an employee who is experiencing COVID-19 symptoms or has tested positive for COVID-19 (such an employee is referred to in the regulations as a "case".)
Investigating and Responding to Covid-19 Cases in the Workplace: The Program must include effective procedures to investigate COVID-19 cases in the workplace, including procedures for verifying and tracking the status of employees who have symptoms of, or contract or test positive for, COVID-19. The Program must include the following procedures:
(1) Determine when the COVID-19 case was present in the workplace;
(2) Determine who may have been exposed;
(3) Provide notice to potentially exposed individuals;
(4) Offer testing to potentially exposed employees;
(5) Provide information on available benefits; and
(6) Investigate how the workplace may have contributed to the COVID-19 exposure.
Testing: The employer must offer COVID-19 testing at no cost during working hours to all employees who had potential COVID-19 exposure in the workplace. This means the employer must pay not only for the test but for the time spent undergoing the test.
Training and Instruction: The employer must provide effective training and instruction to employees that includes the employer’s COVID-19 policies and procedures, all COVID-19 related benefits to which the employee may be entitled, the importance of not coming to work and of obtaining a COVID-19 test if an employee has COVID-19 symptoms, and information regarding COVID-19 transmittal, symptoms, and prevention measures.
Physical distancing: All employees must be separated from other persons by at least six feet if possible, except for momentary exposure while persons are in movement. Methods of physical distancing include: remote work; reducing the number of persons in an area at one time; 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.
Face coverings: The employer must provide face coverings at no cost and ensure they are worn over both the nose and mouth when indoors and when less than six feet away from another person outdoors, and must implement measures to communicate the face coverings requirements to non-employees on their premises (i.e., customers, clients, vendors, etc.).
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. For buildings with mechanical and/or natural ventilation, the quantity of outside air provided must be maximized to the extent feasible. Employers must implement cleaning and disinfecting procedures, and prohibit sharing handheld items. Handwashing facilities should be evaluated to determine sufficiency, and employers must encourage and allow time for handwashing, and provide an effective hand sanitizer.
Reporting, recordkeeping, and access: The employer must report immediately to Cal/OSHA any COVID-19-related serious illnesses or death of an employee occurring in a place of employment or in connection with any employment and must keep records of all COVID-19 cases.
Exclusion of COVID-19 cases: The Regulation directs employers on how to handle symptomatic and asymptomatic cases.
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In COVID-19 cases in which employees have been excluded from the workplace and have experienced COVID-19 symptoms ("symptomatic cases"), the employee must not return to work until the following criteria are all satisfied: (1) at least 24 hours have passed since a fever of 100.4 or higher has resolved without use of fever-reducing medications; (2) other COVID-19 symptoms have improved; and (3) 10 days have passed since COVID-19 symptoms first appeared.
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Employees excluded because they tested positive for COVID-19 but have not experienced any COVID-19 symptoms ("asymptomatic cases") must not return to work until at least 10 days have passed since the date of specimen collection of their first positive COVID-19 test.
- Employees excluded because they were potentially exposed at the workplace (i.e., were in close contact with an employee who contracted or tested positive for COVID-19 during the period in which that employee was infectious) must not return to work until 14 days after the last known exposure, and those under an isolation or quarantine order must not return to work until the period of isolation or quarantine is completed or the order is lifted.
- The regulations prohibit an employer from requiring a negative COVID-19 test result for an employee to return to work.
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For employees who are excluded from the workplace due to potential workplace exposure, but are otherwise able and available to work, the employer must continue and maintain the employee’s earnings, as well as the employee's seniority, and all other employee rights and benefits, including the employee's right to their former job status, as if the employee had not been removed from their job. In complying with this provision, the employer may use accrued sick leave, benefit payments from public sources and any legally mandated COVID pay. Once exhausted, the employer must provide additional paid time off.
Multiple COVID-19 Infections – "Outbreaks" and "Major Outbreaks"
The Regulations impose additional requirements in the event of an "outbreak" at a worksite, which is defined as three or more COVID-19 cases within a 14-day period. In the event of an outbreak, an employer must take the following additional steps until there are no new COVID-19 cases detected in a workplace for a 14-day period:
- Immediately provide COVID-19 testing to all employees and then test them again one week later, and continue to provide testing at least once a week until the outbreak has ended;
- Immediately investigate and determine possible workplace-related factors that contributed to the outbreak, including a documented review of potentially relevant COVID-19 policies, procedures, and controls;
- Implement changes based on the investigation;
- Contact the local health department within 48 hours for guidance.
- These steps are in addition to the employee exclusion requirements discussed above.
Major COVID-19 Outbreaks.
A "major outbreak" is defined as 20 or more COVID-19 cases within a 30-day period. In the event of a "major outbreak", an employer must take the following additional steps until there are no new COVID-19 cases detected in a workplace for a 14-day period:
- Provide twice a week COVID-19 testing, or more frequently if recommended by the local health department, to all employees present at the exposed workplace during the relevant 30-day period(s) and who remain at the workplace, at no cost during the employees’ working hours.
- Consider specified changes to building ventilation and air filtration systems;
- Determine the need for a respiratory protection program or changes to an existing one.
- Consider halting some or all operations until COVID-19 hazards have been corrected.
- These steps are in addition to the employee exclusion requirements discussed above.
COVID-19 Prevention in Employer-Provided Housing.
Where employees live in employer-provided housing, the employer must:
- Ensure the premises are of sufficient size and layout to permit at least six feet of physical distancing between residents in housing units;
- Maximize the quantity and supply of outdoor air and increase filtration efficiency;
- Provide face coverings to all residents;
- Ensure that effective cleaning and disinfecting takes place at least once a day;
- Encourage residents to report COVID-19 symptoms to the employer;
- Establish policies and procedures for COVID-19 testing of occupants;
- Effectively isolate COVID-19 exposed residents from all other occupants, including providing exposed residents with a private bathroom, sleeping area, and cooking and eating facility.
COVID-19 Prevention in Employer-Provided Transportation to and from Work.
The regulations require employers who provide transportation to and from work to:
- Prioritize transporting employees residing in the same unit in the same vehicle, and then employees working in the same crew or worksite in the same vehicle;
- Transport employees who do not share the same household, work crew or worksite in the same vehicle only as a last resort;
- Ensure that the driver and passengers are separated by at least 3 feet in all directions;
- Develop procedures for screening and excluding drivers and riders with COVID-19 symptoms prior to boarding shared transportation;
- Clean and disinfect the vehicles, as specified;
- Provide ventilation in vehicles, as specified; and
The Department of Industrial Relations has issued FAQ's to provide some further guidance for employers FAQs.
These FAQ's will be regularly updated as the issues progress. Additionally Cal/OSHA has created a model COVID-19 prevention program to assist employers in complying with the new regulation. We encourage you to reach out to your firm contact to ensure you are in compliance.
Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Stephanie B. Kantor
Philip R. Reznik
Charles H.W. Foster
Ballard Rosenberg Golper & Savitt, LLP
