California Employers Now Have An Emergency Temporary Standard To Contend With

Jackson Lewis P.C.
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On November 19, 2020, California’s Department of Industrial Relations Occupational Safety & Health Standards Board (“Board”) adopted a general safety order that, in effect, creates an emergency temporary standard specific to potential workplace coronavirus (“COVID-19”) exposures (“COVID-19 Prevention Rule” or “Rule”). While not the first state to adopt an emergency temporary standard (see our earlier posts on new requirements in Michigan, Oregon, and Virginia), California’s COVID-19 Prevention Rule is unique in that it is performance based and adds to the host of requirements imposed by the state’s public health departments. As a result, California employers need to ensure their efforts to manage COVID-19 heed both the new COVID-19 Prevention Rule and state and local public health department orders. The state’s Division of Occupational Safety & Health (“Cal OSHA”) will administer and enforce the COVID-19 Prevention Rule, which is codified in Section 3205 of California’s Code of Regulations, and goes into effect on January 1, 2021.

COVID-19 Requirements for All Workplaces

Cal OSHA’s COVID-19 Prevention Rule has provisions that apply to all workplaces and provisions that are specific to employers that provide housing and transportation or are experiencing outbreak conditions at their workplace. Covered workplaces under the Rule include all workplaces in California, except workplaces with (i) only 1 employee having no contact with others, (ii) employees who are working remotely from their homes, and (iii) employees who are covered by Cal OSHA’s Aerosol Transmissible Disease Standard. In addition, because the COVID-19 Prevention Rule does not limit, restrict, or otherwise supersede state or local health department requirements, compliance with the COVID-19 Prevention Rule alone may not satisfy all workplace COVID-19 requirements in the state. Employers with California workplaces subject to the COVID-19 Prevention Rule may, in fact, have to contend with additional or more restrictive obligations under applicable state or local health department orders on top of the Rule’s many requirements. That said, the COVID-19 Prevention Rule imposes the following minimum requirements on all covered California workplaces:

  • COVID-19 Prevention Program. Employers must establish, implement, and maintain an effective written COVID-19 Prevention Program, which includes (i) a system for communicating COVID-19 information; (ii) procedures for identifying, evaluating, and responding to possible COVID-19 hazards; (iii) procedures to investigate and respond effectively to COVID-19 cases in the workplace, including notifications for potential COVID-19 exposures; (iv) methods for correcting identified COVID-19 hazards; and (v) measures to train and instruct employees on COVID-19 hazards and corresponding controls.
  • COVID-19 Preventive Measures. Employers must implement preventive measures consisting of (i) physical distancing or separation of persons by at least six feet, unless separation is “not possible” or involves a momentary exposure while persons are in movement; (ii) requirement for employees to wear face coverings, except in limited circumstances; (iii) use of engineering and administrative preventive controls, such as physical barriers, markings, optimized ventilation, and cleaning and disinfecting procedures; (iv) provision of handwashing facilities, and (v) use of personal protective equipment (“PPE”), such as gloves, face shields, face masks, goggles, and respirators, when needed to prevent exposure to COVID-19 hazards.
  • Reporting and Recordkeeping. Employers must report information to their local health department when required or requested, report COVID-19 cases that result in a serious illness or death to Cal OSHA, maintain records relevant to COVID-19 cases, and retain COVID-19 related records in a confidential manner and consistent with Cal OSHA medical records regulations.
  • Worker Exclusions. Employers must exclude workers from the workplace who are known to have COVID-19 or who have had a COVID-19 exposure and apply set criteria for allowing workers to return. For example, employers must, without exception, exclude workers that have had an exposure to COVID-19 in the workplace for at least 14 days.
  • Management of COVID-19 Infections and Outbreaks. For workplaces identified by a health department as having an outbreak and workplaces where there are three or more COVID-19 cases within a 14-day period, employers must provide testing to employees at the workplace during working hours upon discovery of the outbreak and at least one week later. When testing is required under the Rule, employers are responsible for testing costs and may have to provide ongoing testing when considered necessary by Cal OSHA, recommended by the health department, or to manage an ongoing outbreak.
  • COVID-19 Case Investigation. Employers must immediately investigate COVID-19 cases and potential COVID-19 outbreaks to determine if workplace related factors contributed to the case or outbreak and take immediate action to address any identified COVID-19 related hazards.
  • COVID-19 Case Notifications. Employers must report COVID-19 outbreaks (three or more positive cases of COVID-19 within a 14-day period) to their local health departments within 48 hours of knowing about a COVID-19 outbreak.

Major COVID-19 Outbreaks

Cal OSHA’s COVID-19 Prevention Rule requires that employers having a major COVID-19 outbreak take additional actions to prevent and minimize the spread of COVID-19. A major outbreak is defined in the Rule as a covered workplace that has 20 or more COVID-19 cases within a 30 day-period. If a major outbreak occurs, employers must comply with certain requirements until no new COVID-19 cases have been detected in the workplace for a 14-day period. These requirements include

  • Employer provided COVID-19 testing at least twice a week;
  • Exclusion of workers who have COVID-19 or experienced a COVID-19 exposure;
  • Ongoing COVID-19 case investigations;
  • COVID-19 hazard assessment and correction, which may require adjustments in ventilation, respiratory protection requirements, change in operations, or “other control measures deemed necessary” by Cal OSHA; and
  • Ongoing COVID-19 notification obligations.

COVID-19 Prevention in Employer-Provided Housing

Cal OSHA’s COVID-19 Prevention requires California employers take additional that provide housing or housing accommodations to their employees, with limited exceptions. At first, these employers must prioritize housing assignments to avoid having employees share a housing unit who do not usually have a common household. Employers must also implement physical distancing controls by redesigning housing spaces to maximize distance between individuals, limit capacity of common areas, and ensure separation of individuals’ beds and furniture. Employers must similarly offer residents face coverings and explain when to wear them, ensure effective cleaning and disinfecting, and implement resident screening and testing programs. Further employers must implement effective procedures for identifying when a resident develops symptoms of illness and ensure effective isolation of potentially sick individuals to prevent and minimize the potential for spread of COVID-19.

COVID-19 Prevention in Employer-Provided Transportation

Cal OSHA’s COVID-19 Prevention Rule requires that employers who are providing transportation for employees to and from work or as part of their job duties implement prescribed precautions. Employers must specifically emphasize transportation assignments that minimize workers sharing transportation with others who do not share a common household, use physical distancing if possible, and require drivers and riders to use face coverings. Employers providing employee transportation must also ensure that effective screening procedures are in place to prevent sick drivers or riders from sharing transportation. Employers must further provide for vehicles’ high contact surfaces to be cleaned and disinfected between trips and uses as well as ensure drivers and riders have access to sanitizing supplies.

The COVID-19 Prevention Rule’s Impact to California Employers

Cal OSHA’s COVID-19 Prevention Rule will upend California employers’ operations and workplace safety measures. Although California employers have been advised through Cal OSHA guidance to address COVID-19 hazards in their Injury Illness Prevention Programs since May, the COVID-19 Prevention Rule adds new programmatic and preventive requirements that go beyond Cal OSHA’s prior guidance. As a result, even those employers that have implemented COVID-19 preparedness and response plans adhering to guidance from the Centers for Disease Control and Prevention (“CDC”) and federal OSHA will need to develop new written program materials. The COVID-19 Prevention Rule also requires employers to comply strictly with preventive measures, unless they are “not possible.” For example, under the COVID-19 Prevention Rule, employers must implement physical distancing measures that ensure individuals remain at least 6 feet of separation or show why physical distancing is impossible. This burden to show that physical distancing is “not possible” also diverges from other occupational health and safety regulations and requirements where employers can show generally that compliance with a requirement is infeasible rather than impossible.

Along with the programmatic burdens, Cal OSHA’s COVID-19 Prevention Rule sets up significant compliance hurdles for employers in the form of COVID-19 case management requirements, mandatory worker exclusions, and required testing. For instance, under this Rule, employers must provide employees on-site COVID-19 testing during working hours in some cases (i.e., COVID-19 outbreak, major COVID-19 outbreak, when recommended by a local health department). To ensure compliance with other federal and state laws, as well as protection of employees’ confidential and private health information, employers will need to coordinate testing services, maintain corresponding records as confidential medical information, and establish controls to prevent improper access, use, or disclosure of employees’ private health information. Employers may also need to make arrangements for testing services before a potential outbreak to ensure the availability of testing resources, especially if testing options are limited in the area where the worksite is located.

Although the requirements under Cal OSHA’s COVID-19 Prevention Rule do not go into effect until January 1, 2021, Cal OSHA can rely on its COVID-19 related guidance to enforce against employers that have not implemented COVID-19 preparedness plans or procedures. Employers also need to be diligent in implementing the programmatic and preventive measures required by the Rule because Cal OSHA has expanded enforcement authority under this Rule and following passage of AB 685 to pursue enforcement of employers violations related to COVID-19 hazards. In fact, under the COVID-19 Prevention Rule and AB 685, Cal OSHA can issue orders compelling certain actions, such as COVID-19 testing, preventive measures, or worksite closures. Cal OSHA may also issue serious violations to employers for COVID-19 related violations without providing a pre-citation notification.

Finally, California employers will need to carefully evaluate requirements under the COVID-19 Prevention Rule along with state and local health department orders and industry guidance to determine what requirements apply to their operations. Since the COVID-19 Prevention Rule does not disturb or interfere with state and local health department requirements, California employers may need to balance different requirements in different California counties and cities. This will be a challenge for employers, particularly as there may be conflicting requirements as a result of differences in health department orders, guidance, or recommended practices. Indeed, because of significant differences in safety requirements in the COVID-19 Prevention Rule, emergency temporary standards adopted in several states, frequent changes in CDC guidance, and more stringent or additional obligations imposed by health department orders, employers may be unable to establish a consistent or uniform COVID-19 response plan and procedures across all of their operations.

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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