California’s Division of Occupational Safety and Health Standards Board Issues New Emergency COVID-19 Prevention Regulations

By Styskal, Wiese & Melchione

On November 18, 2020, the California Division of Occupational Safety and Health (“Cal/OSHA”) proposed temporary emergency regulations to adopt new workplace protocols for covered employers in light of the continuing COVID-19 pandemic.  The emergency temporary regulations (“ETS”) were approved and quickly went into effect on November 30, 2020.  The ETS impose significant new requirements on most California employers and steps should be taken right away to ensure compliance.  Below is a brief summary of some of the requirements under the ETS.

Covered Employers

All California employers are subject to the ETS except for (i) employers with one employee who does not have contact with other individuals, (ii) employees working from home, and (iii) employees covered by Cal/OSHA’s Aerosol Transmissible Disease standard (largely medical service providers).  There are no exclusions based on the size of an employer.

COVID-19 Prevention Plan

A primary component of the ETS is the requirement for employers to have a written COVID-19 Prevention Plan (“CPP”) which must contain specific elements under eleven (11) separate categories.  These separate categories include the following:

• Systems for communicating to employees about the employer’s COVID-10 prevention procedures;
• Identification, evaluation and correction of COVID-19 hazards;
• Screening of employees for COVID-19;
• Procedures to investigate and respond to COVID-19 cases in the workplace, including to verify cases and receive information on test results and symptom onset;
• COVID-19 training to employees;
• Testing of employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implementation of regular workplace testing for employees in the exposed areas;
• Exclusion from the workplace of COVID-19 cases and employees with COVID-19 exposure;
• Maintenance of records of COVID-19 cases and reporting serious illnesses and multiple cases to Cal/OSHA and local health departments.

Investigation of COVID-19 Cases and Notification of Exposure

The ETS contain strict requirements for investigating COVID-19 cases in the workplace.  The obligations under the ETS are in addition to other workplace guidance from the CDC, the California Department of Public Health (“California DPH”), California labor laws and local county guidelines and orders.  In some instances, the ETS are inconsistent with other laws and guidance and so employers must be mindful of the everchanging landscape from the ongoing pandemic.  With respect to responding to a possible or actual COVID-19 case in the workplace, employers must determine the day and time the COVID-19 positive individual was last present in the workplace and, to the extent possible, the date of the positive diagnosis or onset of symptoms.  Employers must determine which employees may have had a COVID-19 exposure by evaluating the activities of the COID-19 case and all locations in the workplace the individual visited during the “high risk exposure period.”  The “high-risk exposure period” is defined under ETS as either (i) from two days before they first develop symptoms until 10 days after the symptoms first appeared, and 24 hours have passed without a fever, or (ii) from two days before until ten days after the specimen for the individual’s first positive test for COVID-19 was collected.

While the California legislature recently passed several laws imposing separate COVID-19-related notice requirements on employers (SB1159 and AB 685), the ETS also impose a notice requirement.  Specifically, under the ETS, the employer must notify all employees who may have had a “COVID-19 exposure” (as defined) (and their “authorized representatives”), as well as independent contractors as well as other employers present at the workplace during the “high risk exposure period.”  Of course, the notice must not reveal the identity of the employee with COVID-19.  In its FAQs issued with the ETS, Cal/OSHA has clarified that the notice is only required for employees who were potentially exposed by being within 6 feet of a COVID-19 case for at least 15 minutes over a 24-hour period during the “high risk period.”  This is consistent with the current CDC guidelines.

Exclusion of COVID-19 Cases and Return to Work

The ETS establish requirements for excluding both employees who are a “COVID-19 case” as well as those employees with “COVID-19 exposure.”  While the ETS largely follow CDC guidelines for an employee with COVID-19, the regulations applicable to employees who had “COVID-19 exposure” are different than under other guidelines.  As essential businesses, financial institutions have been able to follow CDC guidelines for employees who may have been exposed but are asymptomatic for COVID-19.  The ETS appear to remove any delineation for essential or critical infrastructure employees – this appears to be in contrast with both California DPH and CDC guidelines.  It remains to be seen if Cal/OSHA is directed or otherwise pressured to amend the ETS to account for essential businesses and their employees.  However, at this time, the ETS requirements are effective and employers must comply with them as drafted.

For COVID-19 cases, return to work criteria will depend upon whether the COVID-19 positive case had symptoms or was asymptomatic as follows:

(a)  COVID-19 positive case with symptoms shall not return to work until:

1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;

2. COVID-19 symptoms have improved; and

3. At least 10 days have passed since COVID-19 symptoms first appeared.

(b) 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.

The ETS also state that a negative COVID-19 test shall not be required for an employee to return to work.  This is in contrast to the guidance from both the Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”).

Exclusion Pay

One of the most significant provisions under the ETS is the apparent creation of a new paid time off benefit for employees.  From an employer perspective, this is perhaps one of the most troubling requirements imposed by the ETS.  As drafted, for any employee that is excluded from the workplace under the exclusion obligations discussed above and who is otherwise able and available to work, the employer

“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, as if the employee had not been removed from their job…”

This language appears to create a new paid time off benefit for employees, without any caps, regardless of the use and exhaustion of other paid time benefits (e.g., PSL, FFCRA, PTO).  In its FAQs issued with the ETS, Cal/OSHA has essentially confirmed that an employer must provide this “exclusion” pay even after an employee has exhausted paid time off, but an employer may offset payments by the amount an employee receives in other benefit payments (but not workers’ compensation).  Note that this exclusion pay is not required if the employer establishes that the employee’s exposure was not “work-related” – of course, the burden to establish this is on the employer.

Cal/OSHA has indicated it will hold stakeholder meetings in December and perhaps provide additional guidance.  Certainly, from a rule-making perspective, it is unclear how Cal/OSHA, as part of a safety standard, has the authority to implement a brand new paid time off benefit.  Such a benefit, if at all, would appear to fall within the purview of the California legislature or the California Division of Labor Standards Enforcement (“DLSE”).  Even so, for now employers are left with grappling with this new requirement no less at the end of the year when most employees have exhausted all paid time off.

Training Requirements

The ETS requires employers to provide training and information to employees on the following:

• The employer’s COVID-19 policies and procedures (including a copy of the CPP);
• Information regarding COVID-19-related benefits (such as paid leave, FFCRA, Workers’ Compensation);
• The fact that COVID-19 is an infectious disease that can be spread through the air when an infectious person talks, vocalizes, sneezes, coughs, or exhales, that COVID-19 may be spread through surface contact, and that an infected person may have no symptoms;
• Methods of physical distancing and the importance of face-coverings, hand-washing and other measures;
• COVID-19 symptoms, and the importance of obtaining a COVID-19 test and not coming to work if the employee has symptoms.

Summary

As the ETS are now in effect, employers will need to take steps to review and update their COVID-19 protocols to ensure compliance.  Violations of the ETS could result in complaints to Cal/OSHA as well as possible claims under California’s Private Attorneys General Act (“PAGA”) safety-related claims.  Cal/OSHA has indicated that it will provide additional guidance and a training module, however, when that will be issued is unknown.  In the meantime, employers must be aware of the ever-changing federal, state and local orders and guidance related to COVID-19 and the impact on its workforce.