On November 19, 2020, the California Occupational Safety and Health Standards Board (the “Board”) of the Division of Occupational Safety and Health (Cal/OSHA) adopted temporary COVID-19 regulations (“Regulations”) intended to combat the spread of COVID-19 in California workplaces.
The next step will be for the Regulations to be submitted to the Office of Administrative Law (“OAL”). The OAL will review the Regulations for compliance with the Administrative Procedures Act before transmitting the Regulations to the Secretary of State for publication in the California Code of Regulations.
The OAL shall allow interested persons five calendar days to submit comments on the Regulations unless the emergency situation clearly poses such an immediate serious harm that delaying action to allow public comment would be inconsistent with the public interest. The OAL will then have 10 calendar days make a decision on whether the Regulations comply with the Administrative Procedures Act. If approved, OAL will file the Regulations with the Secretary of State for publication, and it will become effective for 180 days, with possible extensions.
If accepted as written, the Regulations contain the following requirements.
COVID-19 Prevention Program
Subject to few exemptions (i.e., businesses with one employee who does not have contact with another person, businesses where all employees are working from home, and businesses covered by section 5199), all businesses must implement a “COVID-19 Prevention Program.” The COVID-19 Prevention Program may be integrated into the employer’s Injury and Illness Program required by section 3203 or be maintained in a separate document. The COVID-19 Prevention Program must provide specific information relating to the following topics:
-System for communicating
-Identification and evaluation of COVID-19 hazards
-Investigating and responding to COVID-19 cases in the workplace
-Correction of COVID-19 hazards
-Training and instruction
-Other engineering controls, administrative controls, and personal protective equipment
-Reporting, recordkeeping, and access
-Exclusion of COVID-10 cases
-Return to work criteria
Exclusion of COVID-19 Cases, Maintenance of Earnings, and Return to Work
Exclusion From the Workplace. Employers must exclude employees with “COVID-19 exposure from the workplace for 14 days after the last known exposure” and until the return to work criteria are met. “COVID-19 exposure” is defined as being within six 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” defined by this section. This definition applies regardless of the use of face coverings. In the Regulations, a “COVID-19 case” refers to a person who has tested positive for COVID-19, has been ordered to isolate by a state or local health official, or has died of COVID-19.
Maintenance of Earnings. Employees who are excluded from the workplace, but who are:
"otherwise able and available to work 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. 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."
An employer is not required to maintain an employee’s earnings if the employee is absent for reasons other than protecting the workforce, the “employer demonstrates that the COVID-19 exposure is not work related,” or, in situations where the employee has not been excluded or isolated by the local health department, the employee is “temporarily reassigned to work where they do not have contact with other persons until the return to work requirements … are met.”
On the subject of maintaining an employee’s earnings and benefits, the Board commented that it is “important in ensuring that employees will notify their employers if they test positive for COVID-19 or have an exposure to COVID-19, and stay away from the workplace during the high-risk exposure period when they may be infectious.” We expect this to generate significant discussion, if not litigation. It certainly creates a substantial and unexpected burden on California employers if the regulation is interpreted to create an entitlement to paid leave.
Return to Work. The Regulations provide a framework for return to work scenarios. Common in all scenarios is that the employer may not require a negative COVID-19 test for a return to work.
- Symptomatic COVID-19 cases may return to work when:
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.
- Asymptomatic, but positive COVID-19 cases may return to work when “a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test."
- “If an order to isolate or quarantine an employee is issued by a local or state health official, the employee shall not return to work until the period of isolation or quarantine is completed or the order is lifted. If no period was specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.”
- “If there are no violations of local or state health officer orders for isolation or quarantine, the Division may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community’s health and safety. In such cases, the employer shall develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation is not possible, the use of respiratory protection in the workplace.”
New Reporting Requirements
The Regulations also mandate new reporting requirements when there are three or more COVID-19 cases in an exposed workplace within a 14-day period and when there are 20 or more COVID-19 cases in an exposed workplace within a 30-day period.
Employers Who Provide Housing or Transportation to Their Employees
Lastly, the Regulations provide direction for employers who provide housing or transportation to their employees, which prioritize assignments for housing and/or transportation. Employees should assigned housing or transport as follows: (1) families or employees who maintain a household together, (2) employees who are in the same crew or employees who work together, and (3) all other employees can be housed/transported together only when no other housing/transportation alternatives are possible.