On November 19, 2020, the California Occupational Safety and Health Standards Board (the Board) unanimously approved a set of emergency COVID-19 safety regulations that significantly expand the responsibilities of most California employers to prevent the risk of COVID-19 outbreaks in the workplace.
The regulations apply to all California employers and places of employment except: a) places of employment with one employee who does not have contact with other persons; b) employees working from home: and employers covered under CAL/OSHA’s Aerosol Transmissible Diseases standard, which includes hospitals, skilled nursing facilities, clinics, and others.
The regulations require employers to establish, implement and maintain a written COVID-19 Prevention Program (the Program). Below is a broad summary of what the Program must include:
- Communication system. Employers must establish a system of communicating about COVID-19 related hazards to their employees, such as how employees can get tested for COVID-19, how employees can report symptoms and/or COVID-19 positive test results, and how employees who are of higher risk can seek accommodations.
- Procedures for identifying COVID-19 hazards. Employers must also establish a process for identifying and evaluating COVID-19 hazards. The regulations describe more in detail what employers must do, such as allowing employees to participate in identifying and evaluating hazards and establishing a process to conduct health screenings.
- Procedures for investigating and responding to COVID-19 cases in the workplace. This includes identifying the potential source of the transmission of the COVID-19 positive employee, providing notice of the potential COVID-19 exposure within one business day without revealing any personally identifying information of the affected employee, offering COVID-19 testing at no cost to employees who had potential COVID-19 exposure, and investigating whether any workplace conditions could have contributed to the risk of COVID-19 exposure.
- Correction Procedures. An employer’s Program must include procedures for correcting COVID-19 related hazards identified in the course of its investigation after being notified of a COVID-19 positive case or concerns raised by employees.
- Training. Employers are expected to include policies for training on several topics relating to COVID-19, such as the transmission and mitigation of COVID-19, social distancing protocols and procedures, and the COVID-19 benefits to which employees may be entitled to under California and federal law.
- Physical distancing. Employers must implement policies that require all employees must be separated by at least six feet, except where an employer can demonstrate that six feet of separation is not possible. This regulation also recommends methods for achieving this requirement, such as teleworking, reducing the number of employees in a specific area at one time, and staggered arrival and break times.
- Face Coverings. Employers must provide free face coverings and ensure employees are wearing them at all times in the workplace.
- Engineering controls, administrative controls, and personal protective equipment. Employers may consider including additional engineering, administrative, and PPE controls for minimizing the risk of COVID-19 infections.
- Recordkeeping and Reporting. Employers must implement a strict policy of recordkeeping and reporting guidelines for COVID-19 cases, including procedures for notifying the Department of Public Health about an outbreak, procedures for recording work-related COVID-19 cases on CAL/OSHA 300 logs, and procedures for reporting work-related hospitalizations or fatalities to CAL/OSHA.
- COVID-19 Testing. Employers must provide COVID-19 testing to all employees if there is a COVID-19 outbreak, defined as three or more COVID-19 cases in an exposed workplace within a 14-day period. COVID-19 testing consists of testing all employees in the exposed workplace and then testing them again one week later. Employers must implement stricter protocols if there is an outbreak of 20 or more COVID-19 cases within a 30 day period, including conducting bi-weekly testing and evaluating whether respiratory protection should be required and whether its operations should cease.
- Exclusion of COVID-19 Cases. Employers must ensure that COVID-19 cases are excluded until the return-to-work requirements are met. Employees who were exposed to COVID-19 must be excluded from the workplace for 14 days after the last known COVID-19 exposure. Employers must continue and maintain an employee’s earnings, seniority, and all other rights and benefits, including the employee’s right to their former job status. Employers may use employee sick leave benefits or consider benefit payments from public sources in determining how to maintain earnings, rights, and benefits.
- Return to Work Criteria. Employers must ensure to establish a return to work criteria for employees who have been exposed to or contracted COVID-19. Employees with symptoms of COVID-19 should not return to work until: 1) at least 24 hours have passed since a fever of 100.4 or higher has been 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. Those who test positive for COVID-19 but never develop symptoms should not return back to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test. Employers should also be aware that a negative COVID-19 test is not required for an employee to return to work.
The finalized draft of these regulations was sent to California’s Office of Administrative Law (the OAL) on November 20, 2020. The OAL has 10 working days to approve the rules, and if approved, the OAL will file the emergency regulations with the Secretary of State, and these regulations will remain in effect up to 180 days.