On November 19, 2020, the California Occupational Safety & Health Standards Board (“Board”) adopted a sweeping emergency COVID-19 regulation, which applies to all employees and places of employment in the state 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 already covered by the aerosol transmissible disease standard at 8 CCR § 5199.
The emergency regulation became effective on November 30, 2020. The regulation will expire on October 2, 2021, although it could be renewed for 90 days at a time until the emergency regulation is either replaced by a permanent regulation or the Board decides the regulation is no longer needed.
Requirements for Written COVID-19 Prevention Programs
The emergency regulation requires employers to develop a written COVID-19 Prevention Program, which may be a part of their Injury and Illness Prevention Program (“IIPP”). Specifically, the COVID-19 Prevention Program must address:
- A system for communicating COVID-19 related information with employees;
- Identification and evaluation of COVID-19 hazards;
- A system for investigating and responding to COVID-19 cases in the workplace;
- A system for correcting COVID-19 hazards;
- Training and instruction;
- Physical distancing requirements;
- Face covering requirements;
- Other engineering controls, administrative controls, and PPE;
- Reporting, recordkeeping, and access;
- Exclusion of COVID-19 cases from the workplace; and
- Return to work criteria.
Mandatory Face Coverings, Physical Distancing, and Other Controls
The emergency regulation imposes new requirements on employers to protect employee health. Employers are required to provide employees face coverings, and employers must ensure that face coverings are worn by workers who are indoors and by workers outdoors who are less than six feet from each other. Employers are also required to separate workers by at least six feet unless an employer can show that it is not possible to maintain that spacing and then must install cleanable solid partitions at fixed work locations where it is not possible to maintain distancing requirements. With regard to housekeeping and hygiene controls, employers must implement cleaning and disinfection procedures and ensure that adequate handwashing facilities are available. Additionally, for buildings with mechanical or natural ventilation, or both, employers are required to maximize the quantity of outside air provided to the extent feasible.
A specific section addressing outbreaks applies if a workplace has been identified by a local health department as the location of a COVID-19 outbreak or when there are three or more COVID-19 cases in an exposed workplace within a 14-day period. The outbreak specific regulations apply until there are no new COVID-19 cases detected in a workplace for a 14-day period. While the outbreak regulations are in effect, employers have additional obligations:
- Employers must provide COVID-19 testing to all employees at the exposed workplace except for employees who were not present during the period of an outbreak or the relevant 14-day period. The testing must be provided during employees’ working hours and provided at no cost.
- The emergency regulation establishes a testing regime during an outbreak. Employers must immediately test employees and then test them again one week later. After those first two tests, testing is to continue at least once per week until the outbreak section no longer applies.
- Employers must investigate and determine possible workplace-related factors that contributed to the outbreak and investigate what policy changes or new controls could be implemented to prevent future outbreaks.
- Employers must notify the local health department within 48 hours of knowing, or with a diligent inquiry would have known, of three or more COVID-19 cases.
Major COVID-19 Outbreaks
The emergency regulation separately addresses “major” COVID-19 outbreaks, defined as 20 or more COVID-19 cases in an exposed workplace within a 30-day period. Once a workplace has a “major” outbreak, these additional regulations apply until there are no new COVID-19 cases detected in a workplace for a 14-day period.
- Requirements on employers are similar to those described above, however, testing is required at more frequent intervals.
- Employers are also required to take specific corrective actions, such as running mechanical ventilation systems with specified filters (if applicable).
If an employer provides housing, employers are required to take steps to protect employee health in this setting. Employers must:
- Prioritize housing unit assignments (i.e., residents who usually maintain a household together outside of work, residents who work in the same crew or worksite);
- Ensure physical distancing of at least six feet between residents in housing units, common areas, and other areas;
- Ensure beds are spaced at least six feet apart in all directions and positioned to maximize the distance between sleepers’ heads;
- Provide face coverings to all residents;
- Ensure that housing units are cleaned and disinfected at least once a day;
- Encourage residents to report COVID-19 symptoms to the employer;
- Establish policies and procedures for COVID-19 testing of occupants;
- Isolate residents exposed to COVID-19 from all other occupants.
If an employer provides transportation to and from work, employers are required to take steps to protect employees while in transit. Employers must:
- Prioritize who is in a single-vehicle (i.e., members of the same household or worksite);
- Require the use of face coverings and physical distancing;
- Require riders to sanitize their hands before entering and exiting the vehicle;
- Screen employees for COVID-19 symptoms prior to boarding shared transportation;
- Disinfect high-contact surfaces (e.g., door handles, seatbelt buckles, armrests) before each trip;
- Keep vehicle windows open (there are exceptions for weather such as extreme heat or rain) and do not set the ventilation system to recirculate air.
California now joins other states, such as Virginia, Michigan, and Oregon, in adopting an emergency COVID-19 regulation. It is likely that other states with state-OSHA programs will adopt emergency regulations and, under the incoming Biden Administration, a federal rule could be promulgated in the future.