Draft Cal/OSHA COVID-19 Regulations up for Vote on November 19, 2020

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On November 12, 2020, the California Division of Occupational Safety and Health (Cal/OSHA) announced proposed temporary COVID-19 regulations for review and a vote by the Occupational Safety and Health Standards Board on Thursday, November 19, 2020.

The proposed regulation was expected to contain new training, hazard identification, and hazard mitigation rules. The proposal also contains many specific requirements for COVID-19 testing, recordkeeping, and leave from work.

The proposed temporary COVID-19 regulation requires a written “COVID-19 Prevention Program,” the elements of which mirror California’s Injury and Illness Prevention Plan requirements. The proposed regulation also includes requirements for notification of potential COVID-19 exposure within one business day to exposed employees, their authorized representatives, independent contractors, or employers at a worksite.

The draft regulation also requires that employers maintain medical records related to COVID-19 and provide those records to the local health department, the California Department of Public Health (CDPH), Cal/OSHA, and the National Institute for Occupational Safety and Health (NIOSH) upon request. In addition, the draft requires that California employers implement a system of recordkeeping to track all COVID-19 cases in the workplace.

The proposed regulations impose additional requirements on employers that provide housing or transportation for employees to minimize or eliminate COVID-19 hazards. According to the proposal, employers providing housing must impose physical distancing, face covering, cleaning and disinfecting, and screening protocols. In addition, the proposal requires that employers implement transportation safety measures regarding physical distancing, face coverings, screening, cleaning and disinfecting, and improved ventilation.

The draft regulation also contains expected requirements for the use of face coverings, trainings, cleaning and disinfecting protocols, the use of personal protective equipment (PPE), and ventilation. One unexpected section of the proposal requires that California employers maintain employees’ earnings, seniority, and benefits when they are off work because of COVID-19. This unprecedented provision is outside the typical scope of workplace safety regulations and likely to receive substantial public comment at the Standards Board hearing on Thursday, November 19, 2020. If the Standards Board votes to adopt the temporary regulation, employers may be required to be compliant as early as November 30, 2020.

Key Takeaways

California employers can attend the Standards Board meeting via video conference

(code number: 268 984 996) and offer public comments regarding the draft regulation. In anticipation of the final regulations, California employers may want to take the following actions:

  • start preparing for the new recordkeeping requirements,
  • be ready to draft or finalize their COVID-19 Prevention Programs,
  • consider implementing the regulations’ testing protocols, and
  • start outlining a COVID-19 exposure notification process (in contemplation of a final requirement for notification to be passed in the regulation).

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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Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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