On Thursday, Nov. 19, 2020, the Department of Industrial Relations Occupational Safety and Health Standards Board (Cal/OSHA) voted unanimously to move forward with a set of new regulations that heighten workplace safety requirements in response to the COVID-19 pandemic. The new rules were approved as an emergency action to provide a new baseline that businesses will be required to meet in protecting their employees from COVID-19. The new rules are expected to take effect by Monday, November 30, 2020.
COVID-19 Prevention Program
The new rules will require employers to have a written “COVID-19 Prevention Program,” which creates several new obligations for employers:
1. A plan for communicating with employees.
Including asking employees to report COVID-19 symptoms, exposure and hazards “without fear of reprisal” and providing information on testing availability.
2. A list of identified COVID-19 hazards. The rules require employers to allow participation by “authorized employee representative[s]” in creating a list of potential hazards and a process to screen for and respond to employees with COVID-19 symptoms or exposure, as well as a process for evaluating all workspaces and practices for potential COVID-19 transmission.
3. A procedure for investigating and responding to COVID-19 cases in the workplace. Including a procedure for identifying any potential or actual exposures and for notifying any employees and independent contractors who may have been exposed within one business day (without revealing personal identifying information (PII)).
This procedure also requires employers to offer COVID-19 testing—at no cost and during work hours—to all employees who may have been exposed to COVID-19.
4. Policies and procedures for correcting unsafe working conditions.
5. Training and instruction for employees.
Including training on the employer’s COVID-19 safety protocols and information about federal, state and local COVID-19-related benefits, such as paid sick leave and workers’ compensation.
6. Physical distancing at worksite(s).
The rules require that all employees be separated by at least six feet (unless an employer can demonstrate that this is not possible) and that employers put in place systems to encourage such distancing.
7. Provision of face coverings to employees.
Employers are required under the rules to provide employees with face coverings and to “ensure they are worn by employees over the nose and mouth when indoors, when outdoors and [when] less than six feet away from another person, and where required by orders from the CDPH or local health department.” Anyone not wearing a face covering or face shield should be at least six feet from others unless the person is tested at least twice weekly for COVID-19.
8. Additional safety precautions where necessary.
Including, as appropriate, installing partitions between employees, maximizing the flow of outside air, implementing heightened cleaning and disinfecting protocols, and providing personal protective equipment (PPE) as needed.
9. Reporting and recordkeeping.
The rules include significant reporting requirements, including that employers report COVID-19 cases at their workplaces to local health departments as required by law, “immediately” report to Cal/OSHA any COVID-19-related serious illnesses or the death of an employee (occurring at work or in connection with employment), document preparation of and compliance with the employer’s COVID-19 Prevention Program, and maintain detailed records of all COVID-19 cases among employees.
10. Exclusion of COVID-19 cases.
The rules require employers to keep employees with COVID-19 cases out of the workplace until they are no longer a risk to other employees and to exclude potentially exposed employees for 14 days after exposure. Importantly, employers are required 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 sick leave and public benefits to do so where otherwise permitted by law.
11. Return to work criteria. Employees with COVID-19 symptoms are not permitted to return to work until at least 10 days after symptoms first appear and at least one day after a fever of 100.4 or higher has resolved. Asymptomatic employees may return to work no less than 10 days after a positive test. A negative test is not required.
The rules detail employer conduct where a workplace experiences an outbreak (defined as three or more cases at a worksite within a 14-day period). In outbreak situations, employers are required to provide COVID-19 testing to all employees (except those who were not present during the outbreak period or the relevant 14-day period). Testing must be provided at no cost to employees, during employees’ working hours. The required testing includes initial testing and follow-up testing one week later, and continuous testing at the worksite at least once per week until no COVID-19 cases are detected for a 14-day period, and any additional testing as required by Cal/OSHA.
Employers are also required to exclude employees with COVID-19 or who have been exposed, to investigate all workplace illnesses, and to correct any hazards identified (including “the employer’s leave policies and practices and whether employees are discouraged from remaining home when sick”).
Employers that have an outbreak at their worksite(s) are required to notify the local health department within 48 hours of when an employer knows, or with diligent inquiry would have known, of three or more COVID-19 cases at a worksite.
The rules provide a new category for “Major COVID-19 Outbreaks,” defined as 20 or more COVID-19 cases at a worksite within a 30-day period. Employers with a major outbreak are required to provide testing twice a week and to otherwise comply with the outbreak procedures described above. In addition, worksites with major outbreaks may be required to upgrade their ventilation systems to filters rated Minimum Efficiency Reporting Value (MERV) 13 or higher and to evaluate whether a respiratory protection program is necessary. Cal/OSHA may also order additional control measures as necessary.
Housing and Transportation
The rules add requirements for employer-provided housing and transportation, largely in line with existing safety requirements. For example, employers are required to maintain physical distancing between beds, maximize ventilation, and increase cleaning and disinfecting protocols. Employers are required to ensure that shared assignments maintain cohorts to the greatest extent possible.
Emergency Action Expedites Effective Date
Cal/OSHA designated its approval of the new regulations a “Finding of Emergency.” This finding means the Office of Administrative Law (OAL) has just ten (10) days from submission to review the regulations before they take effect. The new regulations are expected to take effect by Monday, Nov. 30, 2020.