OAL Approves Cal/OSHA’s Emergency COVID Regulations, EFFECTIVE IMMEDIATELY

CDF Labor Law LLP

This week, California’s Office of Administrative Law (OAL) approved Cal/OSHA’s emergency COVID regulations, making them effective immediately.  My prior post summarizing these new regulations is here and the text of the new regulations is here.  Yesterday, California’s Department of Industrial Relations published FAQ guidance concerning the requirements of the new regulations, available here.  Employers should review the guidance, as well as the text of the new regulations, in preparing a compliant COVID prevention plan and implementing protocols to comply with the new regulations.   Finally, Cal/OSHA has published a Model COVID Prevention Plan template for employers to use.  A link to the template is included in the FAQ guidance linked above.

In yesterday’s newly issued guidance, the agency seemed to acknowledge that employers cannot reasonably be expected to comply with all aspects of the new regulations effective immediately.  In this regard, it provided the following Q&A:

Q: When must employers comply with the emergency temporary standard [the new regulations]?
A: November 30, 2020, the day the Office of Administrative Law approved the [new regulations].

Q: What if an employer is unable to comply with the [new regulation] by its effective date?
A: Many of the provisions of these regulations have already been required under employers’ Injury and Illness Prevention Programs (IIPP), including the requirement to identify and address hazards, use of face coverings, and physical distancing.  As employers implement the new regulations, Cal/OSHA enforcement personnel will consider an employer’s good faith efforts in working towards compliance, but some aspects, such as eliminating hazards and implementing testing requirements during an outbreak, are essential.

So, it seems Cal/OSHA will provide some leeway to employers who are trying in good faith to comply with the new regulations, even if they cannot accomplish this immediately.

Many of us wondered if the guidance would address the very surprising aspect of the regulations that appears to impose a new paid leave requirement on employers who exclude employees from the workplace for 14 days to quarantine due to possible COVID exposure.  Well, the guidance does address this but seems (also surprisingly) to confirm that the regulations do, indeed, impose a new paid sick leave requirement ON TOP of employers’ existing (also new) requirement to provide supplemental paid COVID sick leave (in accordance with the recently enacted AB 1867 and the federal FFCRA).  Here’s the FAQ on that subject:

Q: Must an employer pay an employee while the employee is excluded from work?
A: If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits.  An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments.  (Please refer to the Labor Commissioner’s COVID-19 Guidance and Resources for information on paid sick leave requirements.).  These obligations do not apply if an employer establishes the employee’s exposure was not work-related.

This guidance, like the actual text of the regulations, suggests that even if an employee has exhausted all available COVID paid sick leave, the employer still must pay an employee for up to 14 days if the employee is excluded from working due to the need to quarantine as a result of possible COVID exposure in the workplace.  This could hypothetically happen repeatedly and the employee would still be entitled to pay.  [Just when you think the State of California could not do more to try to ruin California businesses already struggling to keep their doors open.]

A stakeholder meeting is scheduled to be held in December to provide feedback concerning the regulations and possible changes to them.  I suspect they will get plenty of feedback.  In the meantime, employers need to do their best to try to comply with the existing rules.

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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