Cal/OSHA Emergency Temporary Standards for COVID-19

Pillsbury Winthrop Shaw Pittman LLP

As of November 30, 2020, California employers are required to have a written COVID-19 Prevention Plan.

TAKEAWAYS

  • The new rules may be duplicative of existing regulations, and go beyond safety and health into areas of employment law.
  • Notwithstanding Cal/OSHA’s prior informal guidance, employers must update their written COVID-19 policies and procedures.

On November 20, 2020, the Department of Industrial Relations’ Occupational Safety and Health Standards Board (Board) adopted emergency temporary standards to protect workers from hazards related to COVID-19. Following approval by the Office of Administrative Law (OAL), the emergency standards went into effect on November 30, 2020.

The new Title 8 emergency standards are titled as follows: section 3205 (COVID-19 Prevention), 3205.1 (Multiple COVID-19 Infections and COVID-19 Outbreaks), 3205.2 (Major COVID-19 Outbreaks) 3205.3 (COVID-19 Prevention in Employer-Provided Housing) and 3205.4 (COVID-19 Prevention in Employer-Provided Transportation to and from Work). A copy of the as-proposed standards is available here.

Modeled off the Injury and Illness Prevention Program required of all California employers, section 3205 requires a written plan that addresses hazard identification, evaluation and correction; investigation; training; physical distancing, face coverings, and other engineering and administrative controls; reporting and recordkeeping; and return to work criteria. Notably, employers are required to provide notice within one (1) business day of a potential exposure, and to offer testing at no cost to employees who may have been exposed. Employers are required to “exclude” exposed employees from the workplace for at least 14 days. Employees who test positive but do not show symptoms may not return to work until at least 10 days have passed since the date of their first positive test. Employees who are excluded from the workplace because of possible exposure to COVID-19 will continue to receive earnings and seniority. In addition to reporting COVID-19 cases to the local health department when required by law, employers are to immediately report to Cal/OSHA any COVID-19-related serious illnesses or death at the workplace or in connection with any employment.

Sections 3205.1 and 3205.2 set forth additional testing, investigation and hazard correction requirements in the event of a workplace outbreak (three or more cases in a 14-day period) or major outbreak (20 or more cases within a 30-day period). In the event of a major outbreak, the employer shall evaluate whether to halt operations, and must take any other control measures deemed necessary by Cal/OSHA. Sections 3205.3 and 3205.4 address employer-provided housing and transportation, which is common in the agricultural and meat/poultry-packing and processing industries.

The emergency standards will remain in effect for 180 days unless the OAL approves a readoption of the standards during that time period. The Board is permitted to request up to two readoptions for an additional 90 days each. The temporary standards can become permanent if the Board submits them through the regular rulemaking process.

Recognizing the fact that most employers will not have a written COVID-19 Prevention Plan on or shortly after November 30, 2020, Cal/OSHA intends to take an employer’s good faith efforts into account and to offer “a little bit of flexibility” when evaluating compliance with the new standards. Nonetheless, employers should expect the new sections 3205 through 3205.4 to be the basis for citations.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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