Update: This advisory has been updated to include the latest information on the Cal/OSHA emergency COVID-19 prevention rule.
On November 30, 2020, California's Office of Administrative Law gave final approval to a sweeping new COVID-19 Prevention Rule. As a result, employers with operations in California should review and update their COVID-19 safety protocols in light of the new regulation, which is effective immediately.
The emergency rule, which applies to most employers in California,1 consists of 21 pages of specific mandates regarding COVID-19 safety in the workplace. The rule, which will be enforced by Cal/OSHA, will remain in effect for at least six months, and may be extended for various reasons.
The full text of the new rule can be found here. Its key provisions are summarized below.
The rule requires employers to establish and implement a specific, written COVID-19 Prevention Program, which can either be integrated into the employer's Injury and Illness Prevention Program (IIPP) or maintained as a separate document. The program must cover 11 elements, each of which has detailed requirements.
Employers should carefully review the rule for those details; significant requirements include:
The new rule also requires employers to provide a series of free tests to all employees at a workplace if there is a "COVID-19 outbreak" (as identified by the local health department) or if there are three or more individuals who are onsite and who test positive for COVID-19 within a 14-day period. The rule directs the first test to occur "immediately" after an outbreak label or the third onsite positive case.
Additional tests must be provided to all employees each week until there are no new COVID-19 cases detected in the workplace for a 14-day period. Employees who are not onsite during the relevant outbreak or 14-day period are exempt from this testing obligation.
In addition, an outbreak or three positive cases in a 14-day period triggers a requirement for employers to "immediately" review and implement changes to existing COVID-19 policies and controls to prevent further spread of COVID-19. Employers must also notify the local health department within 48 hours from the time the employer knew or should have known of three or more COVID-19 cases.
If there are 20 or more COVID-19 cases in a workplace within a 30-day period, then a "major COVID-19 outbreak" has occurred under the emergency rule. The same requirements described above for multiple infections and local health department-identified outbreaks apply, except that employee testing will be required twice a week or more frequently if directed by the local health department.
An employer in a major outbreak will also be required to incorporate high efficiency filters into the facility's ventilation system if that has not already been done. The employer will also be required to consider whether respirators and a respiratory protection program, a halt in operations, or both are necessary to control the major outbreak.
The emergency rule also provides restrictions and requirements for employer-provided housing and transportation. These requirements do not apply to emergency response housing and transportation, housing provided by government employers, or where all individuals affected are part of the same household.
The provisions regulate housing and transportation assignments, physical distancing, face coverings, hygiene, cleaning and disinfecting, symptom screening, COVID-19 testing, and ventilation.
Now that it has been enacted, the emergency rule will remain in effect for 180 days, after which it could be renewed in 90-day increments until the emergency is over or a permanent rule is enacted.
The rule raises many question about how particular provisions should be interpreted and applied. For example, the rule requires employers to notify employees and local health authorities of workplace COVID-19 cases, but it is unclear whether those requirements are fully consistent with similar provisions in Assembly Bill (AB) 685, which was recently enacted by California's Legislature and will go into effect on January 1, 2021. Our blog post discussing the details of AB 685 can be found here.
There are also questions regarding when exactly the rule will and will not require employers to continue paying employees who are excluded from the workplace due to COVID-19 exposure, how such pay must be calculated, and even whether the Cal/OSHA Safety & Health Standards Board has the legal authority to regulate employee compensation. It is likely that at least some of these questions will be subject to legal challenges and eventually decided by the courts.
In the meantime, however, employers should review their COVID-19 policies and procedures to determine what they need to do to comply with the new rule. Given the breadth and complexity of the new rule, employers are also well advised to consult with their legal counsel for guidance.
1 The rule applies to all places of employment in California except for workplaces with a single employee who has no contact with others; employees working from home; and employers subject to Cal/OSHA's Aerosol Transmissible Diseases standard (which is mostly limited to healthcare facilities, nursing homes, and emergency responders).