On November 19, 2020, Cal/OSHA voted 6-0 to implement sweeping new temporary emergency COVID-19 regulations (COVID Regulations) which require employers to implement a written COVID-19 prevention program with 11 categories of protocols covering everything from employee communications to appropriate face coverings. Crafting a compliant COVID prevention program will take significant time and resources. See below for a more detailed overview.
In addition, the COVID Regulations impose mandatory quarantines for positive tests and exposure to those who have tested positive, and require employer-provided testing. The full text of the regulations is available through this link.
The COVID Regulations apply to all employees and all places of employment except for: (1) places of employment with one employee who does not have contact with other persons; (2) employees working from home; and (3) employees working in health care facilities, services or operations, as defined by section 5199—see link—of Cal/OSHA regulations.
The COVID Regulations, promulgated by Cal/OSHA via California’s emergency rulemaking process, will go into effect pending review by the California Office of Administrative Law—to be completed within 10 days—and will stay in place for 180 days.
In a press release dated November 20, 2020, Cal/OSHA stated that it will expeditiously convene a stakeholder meeting that will include industry and labor representatives to review the requirements of the emergency regulation and solicit feedback and recommend updates. Full press release available here.
New Expanded Contact Tracing in “Exposed Workplaces”
Pursuant to the COVID Regulations, employers must have procedures in place to identify and contact trace COVID-19 cases in the workplace and to notify employees of a “COVID-19 exposure” and/or if an employee was in an “exposed workplace.” Employers must also offer free testing during work hours to all employees whom are identified as having had potential exposure in the workplace. The frequency of testing depends on the nature of exposure and the number of cases at the workplace.
The COVID Regulations define a “COVID-19 exposure” as “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.” The “high risk exposure period” is defined as:
(1) For persons who develop COVID-19 symptoms: from two days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved; or
(2) For persons who test positive who never develop COVID-19 symptoms: from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.
Under the COVID Regulations, “exposed workplace” means any work location, working area, or common area at work used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. The exposed workplace does not include buildings or facilities not entered by a COVID-19 case. Please note that this requirement is similar to the notification requirements within AB 685, prior post available here, which becomes effective on January 1, 2021.
New Mandatory Quarantines for Exposed Workers
The COVID Regulations also require employers to exclude employees with a COVID-19 case and/or employees with a COVID-19 exposure from the workplace as follows:
(A) COVID-19 cases with COVID-19 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 COVID-19 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.
(C) Employees with a COVID-19 exposure shall be excluded from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.
Even more burdensome, employers must continue to pay employees their regular earnings during the mandatory quarantine period. An employer’s obligation can be offset by other available benefits such as workers compensation and leave under the First Families Coronavirus Response Act (FFCRA). Please note that employees who have had a COVID-19 exposure, but who have no symptoms and have not tested positive for COVID-19 are not eligible for FFCRA leave. As worded, the regulations strongly suggest that even if an employee is eligible for FFCRA leave, the employer still has the obligation to pay the difference between the FFCRA leave amount and the employee’s regular earnings. Employees also can use sick leave. The pay requirements do not apply to any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from COVID-19 transmission or if the employer can demonstrate that the COVID-19 exposure was not work related.
New Requirement of a Written COVID-19 Prevention Program
The COVID Regulations also mandate that employers implement a written COVID-19 prevention program—including eleven topics—which formalizes and greatly expands the industry guidelines, available here, published and updated by the state of California since this spring.
A full list of the required COVID-19 prevention program topics is listed below:
- System for communicating COVID-19 policies to employees
- Identification and evaluation of COVID-19 hazards
- Procedures for investigating COVID-19 cases in the workplace
- Correction of COVID-19 hazards
- Training and instruction on protocols
- Protocols for ensuring physical distancing of 6 feet or more between employees in the workplace
- Standards and procedures for the employer to provide face coverings to employees
- Engineering/administrative controls and personal protective equipment
- Recordkeeping requirements
- Exclusion of COVID-19 cases
- Return-to-work criteria
Employers should immediately contact counsel to fully understand the ramifications of these regulations on operations, as well as strategies to mitigate the impacts of these regulations. These regulations in conjunction with the reporting requirements of AB 685 which take effect January 1, 2021, have major implications for employers. Given the cost of complying with these measures, and the impact of SB 1159 (which expands the presumption of workers’ compensation liability for COVID-19 illness in California) prior post available here, to the extent feasible, employers should consider limiting the workspace to individuals who cannot perform their duties remotely. Further, the Cal/OSHA regulations likely will serve as a template for similar laws in other states and/or federal OSHA standards.