Cal/OSHA’s New Employer Compliance re COVID-19

On November 30, 2020, California’s Division of Occupational Safety and Health (Cal/OSHA) adopted emergency regulations to protect workers from COVID-19. The regulations require employers to develop an investigation, isolation, and notification plan in the event of COVID-19 cases in the workplace.

We recommend employers review the Regulations which can be found here, and contact counsel for help preparing a workplace specific program.

Written COVID-19 Prevention Program

Employers must establish, implement, and maintain an effective, written COVID-19 prevention program that addresses the following:

1. A system for communicating information to employees about COVID-19, that must include all of the following:

• System for employees to report exposures without fear of retaliation;
• Accommodations for employees with underlying conditions that put them at risk for COVID-19;
• Information about access to COVID-19 testing;
• Information about “COVID-19 hazards” (defined as exposure to potentially infectious material that may contain SARS-Co V-2, such as airborne droplets, small particle aerosols, etc.)

2. Identify and evaluate COVID-19 hazards, including:

• Allow employees to participate in the identification and evaluation of “COVID-19 hazards.” 
• Develop a process for screening employees (e.g., self-assessment or temperature checks in the workplace) and responding to employees with “COVID-19 symptoms”
• Develop a plan to respond effectively and immediately to individuals at the workplace (i.e., not just employees) who are a “COVID-19 case” (as defined).
• Identify workplace areas, activities, etc., that could potentially expose employees to “COVID-19 hazards.”
• Evaluate how to maximize the quantity of outdoor air and filtration efficiency (for indoor operations).
• Evaluate existing prevention controls and conduct periodic inspections as needed to identify unhealthy conditions, work practices, etc.

3. Prepare a plan for investigating and responding to COVID-19 cases in the workplace, that must include:

• Determine the day and time the “COVID-19 case” was last present and, to the extent possible, the date of the positive COVID-19 test, and the date the COVID-19 case first had one or more COVID-19 symptoms
• Determine who may have had a “COVID-19 exposure”
• Give notice of the potential “COVID-19 exposure” within one-business day
• Offer COVID-19 testing at no cost to employees who had potential exposure during working hours and provide information regarding COVID-19 benefits (e.g., sick leave, workers’ compensation, etc.)
• Investigate whether workplace conditions contributed to the risk of exposure and what could be done to reduce the risk   

4. Correct COVID-19 hazards. For example, implement procedures in response to evaluations conducted (see para. 2 above).

5. Train and instruct employees regarding:

• Employer’s prevention policies
• COVID-19 related benefits (e.g., sick leave, workers’ compensation)
• How infectious COVID-19 is
• Methods of physical distancing and importance of face covering
• Importance of frequent hand-washing
• Proper use of face coverings
• “COVID-19 symptoms” and the importance of staying home when exhibiting symptoms

6. Ensure physical distancing. For example, promote teleworking arrangements when possible, reduce the number of persons in one area, add visual cues to indicate to employees and others where to go, stagger schedules, etc.

7. Provide face coverings and ensure they are worn. Employers are also required to communicate to non-employees the face covering requirement and make sure employee exposure to “COVID-19 hazards” originating from any person not wearing a face covering, is minimal.

8. Implement other controls:

• Encourage hand washing breaks (for at least 20 seconds each time)
• When not possible to maintain social distancing, install cleanable solid partitions
• Maximize the quantity of outside air
• Identify and clean frequently touched surfaces
• Provide PPE as needed (e.g., gloves, goggles, and face shields)

9. Report, record, and provide access to information about COVID-19 in the workplace. This includes recording and tracking 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

10. Remove COVID-19 infected and exposed workers from the workplace.

Significantly, the Regulations require employers to:

“…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, 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.”

In other words, Cal/Osha apparently intends to require employers to maintain an excluded employee’s wages during the isolation period, subject to two exceptions:

• When the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission.
• Where the employer demonstrates that the COVID-19 exposure is not work related.

11. Implement criteria for employees to return to work after recovering from COVID-19. See specific return to work guidance in the Regulations. The Regulations prohibit employers from requiring a negative COVID-19 test as a condition to return to work.

COVID-19 Infections and Major Outbreaks

The Regulations provide information and instructions for employers about notice, testing, and isolation when there are multiple infections (defined as three or more cases within a 14-day period) or an outbreak (defined as 20 or more cases within 30 days) in the workplace. Notification must be provided to the local health department within 48 hours after the employer knows or would have known of three or more “COVID-19 cases.” This is similar to a requirement imposed by Assembly Bill 685 (see below)

Additional Compliance Requirements  

In addition to the requirements posed by the new regulations, employers must also comply with Senate Bill 1159 and Assembly Bill 685, signed by Governor Gavin Newsom earlier this year.

Senate Bill 1159, which is currently in effect, provides a rebuttable presumption that an employee’s coronavirus illness is an occupational injury and therefore eligible for workers’ compensation benefits if specified criteria are met. The new law also requires employers to notify their workers’ compensation carriers within three business days of when the employer “knows or reasonably should know that an employee has tested positive for COVID-19.”

Assembly Bill 685 requires employers to promptly (within one business day) notify all employees who were at a worksite of all potential exposures to COVID-19. While this requirement takes effect on January 1, 2021, another requirement of AB 685 is already in effect for most employers, and that is to notify (within 48 hours) the local public health agency of outbreaks at work (defined as “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.”)

As COVID-19 cases continue to surge, employers should continue to monitor law changes (federal, state, and local) as these require significant compliance efforts to be undertaken.

Sue M. Bendavid and Tal Burnovski Yeyni represent employers.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.