Not So Happy Holidays from Cal/OSHA – New Requirements for California Employers

CDF Labor Law LLP

On Friday, Cal/OSHA adopted emergency regulations imposing COVID-related safety standards and requirements related to workplace COVID testing and paid leave for employees who test positive or are exposed to COVID.  The Office of Administrative Law has until November 30 to review and approve the regulations and, if approved (which is expected), they will become effective immediately.  With it being a short workweek due to the holiday, this is particularly short notice for California employers who must now undertake to implement policies and procedures in order to comply with these complicated new regulations.  

The regulations require most employers in the state (excluding employers covered by 8 CCR section 5199, employees who work from home, and employers with only one employee who works alone) to establish, implement, and maintain a COVID-19 Prevention Program.  This may be a part of the employer’s illness and injury program or it may be a separate document.  The COVID-19 Prevention Program must include the following elements:

  • System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
  • Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
  • Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.
  • Correcting COVID-19 hazards – including correcting unsafe conditions and work practices as well as providing effective training and instruction.
  • Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.
  • Face coverings – providing face coverings and ensuring they are worn.
  • Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.
  • Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
  • Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
  • Criteria for employees to return to work after recovering from COVID-19.
  • Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
  • Specific requirements for infection prevention in employer-provided housing and transportation to and from work.

There are detailed requirements within each of the above bullet point categories that are spelled out in the new regulations.  Some of the particularly notable requirements are the following:

  • If an employer learns of a COVID case in the workplace, employers must investigate to determine which other employees may have been exposed and notify them within one business day.
  • Employers must offer, and pay for, COVID testing during working hours, to all employees who may have been exposed to COVID in the workplace.
  • Employers must exclude employees with COVID exposure from the workplace for 14 days after the last known exposure, and must maintain the employee’s earnings and benefits as if the employee had continued to report to work.  (It is not clear to me how Cal/OSHA has the authority to require employers to provide paid time off to employees as part of a safety standard.)  Employers may use employer-provided paid sick leave benefits and may also consider benefits provided by public sources in satisfying the obligation to ensure that employee’s earnings continue.  However, it appears that if an employee has already exhausted all forms of paid leave, the employer must continue the employee’s pay, without limit as to the number of times the employee may use this new form of paid leave if exposed to COVID in the workplace.  Note that if an employer can demonstrate that the COVID exposure was not work-related, then the employer does not have to continue the employee’s earnings.
  • Employers may not allow employees who have tested positive for COVID to return to work until the following are met:  (1) if a COVID-positive employee is symptomatic, the employee may not return until (a) at least 10 days have passed since the employee first developed symptoms; (b) the employee’s symptoms have improved; and (c) at least 24 hours have passed since any fever resolved without the use of fever-reducing medication; and (2) if an employee tests positive but is asymptomatic, the employee may not return to work until at least 10 days have passed since the date of the specimen collection that led to the positive COVID test result.
  • Employers may not require a negative COVID test as a condition of returning to work.
  • The regulations impose additional and more stringent/frequent COVID testing requirements in the event of 3 or more COVID cases at a workplace within a 14-day period (and, even more requirements in the event of 20 or more COVID cases within a 30 day period).

The full text of the new Cal/OSHA regulations is available using the link in the DIR press release here. All covered employers need to take fairly immediate steps to prepare and implement a COVID prevention program that complies with the new regulations.  Even employers that have already adopted COVID prevention plans will need to review the new regulations and modify or add to their prevention plans as needed to comply with new requirements set forth in these emergency regulations.  Cal/OSHA has stated that it will be publishing additional guidance and FAQ on the new regulations in the near future, but given that the regulations are likely to take effect by November 30, employers may not be able to await this new guidance in order to get started on drafting their COVID-19 Prevention Programs.

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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