The California Occupational Safety and Health Administration (Cal-OSHA) has issued some new rules relating to the ongoing COVID-19 pandemic. The rules went into effect on November 30 and apply to all employers with more than one employee. It does not apply to employees working from home or in health care and other facilities identified in Title 8, Section 5199 of the California Code of Regulations.
While a vaccine has now started to be administered, employers and employees will still be vulnerable to infection until the population reaches a critical mass of immunity, also called herd immunity, which will not happen until well into 2021 if not later. So the new rules merit close attention.
The new regulations require employers to have a specific COVID-19 training and prevention program, plans in place to deal with infection outbreaks, no-cost employee testing when an outbreak occurs, and additional requirement for employers that provide employee housing or employee transportation.
Employee Training and Prevention
The new regulations require employers to have and maintain a written training program on how to avoid COVID-19 infections as well as a written prevention program (“WPP”). This latter part can be incorporated into an existing program on illness and injury prevention.
The required elements for a WPP include:
- System for communicating
- Identification and evaluation of COVID-19 hazards
- Investigating and responding to COVID-19 cases in the workplace
- Correction of COVID-19 hazards
- Training and instruction
- Physical Distancing
- Face coverings
- Other engineering controls, administrative controls, and personal protective equipment
- Reporting, recordkeeping, and access
- Exclusion of COVID-19 cases
- Return to work criteria.
COVID-19 Outbreaks
When a workplace suffers more than three reported COVID-19 infections over a fourteen-day period (or otherwise identified as an outbreak by a local health department), employers are required to provide free testing to exposed employees, exclude infected employees from the workplace, conduct an investigation to determine how the outbreak occurred, implement changes to their policies and procedures as necessary, take steps to prevent further spreading at the workplace and notify their local health department.
When a workplace suffers a major outbreak, defined as twenty or more reported infections in a workplace within a thirty-day period, employers must take further actions. Those actions include providing free COVID-19 testing at least twice per week for exposed employees, eliminating any COVID-19 hazards and all other requirements for initial outbreaks.
Employer-provided Housing and Transportation
Employers that provide employee housing have certain obligations to help keep those employees protected from infections. Those include prioritized housing assignments, required physical distancing, required face coverings, procedures for cleaning and disinfecting, screening for symptoms (such as checking for fevers), requiring COVID-19 testing and providing a way to isolate infected employees.
If an employer provides employees with transportation to and from work, other requirements must be in place to help prevent COVID-19 infections. Those include prioritizing who is assigned transportation, requirements for social distancing and face coverings in employer-provided vehicles, procedures for cleaning and disinfecting, requirements for ventilation and hand hygiene.
Face Coverings and Personal Protective Equipment (PPE)
The regulations requires employers to provide face coverings and ensure that they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, or when required by public health authorities. The standard also specifies that face shields are not a replacement for face coverings, although they may be worn together for additional protection.
The regulations also prohibit an employer from preventing an employee from wearing a face covering when not required, unless it would create a safety hazard.
Employees can be exempted from wearing face coverings in the following scenarios:
- When an employee is alone in a room
- While eating and drinking, provided employees are at least six feet apart
- For employees wearing respiratory protection
- Employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing impaired person (but they must wear an effective alternative, such as a face shield with a drape on the bottom)
- While performing specific tasks that cannot feasibly be performed with a face covering
The regulations further require employers to evaluate the need for personal protective equipment to prevent exposure to COVID-19 hazards, such as gloves, goggles, and face shields, and provide such personal protective equipment as needed.
Mandatory Quarantine for Confirmed Cases
The regulations require employers to ensure that “COVID-19 cases” (those who have tested positive or have an order to isolate from public health authorities) are excluded from the worksite until they have satisfied certain return to work criteria.
For COVID-19 cases with symptoms, employees should not be allowed to return to work until:
- At least 24 hours have passed since a fever of 100.4+ has resolved without the use of fever-reducing medications
- COVID-19 symptoms have improved
- At least 10 days have passed since symptoms first appeared
For COVID-19 cases without symptoms, employees cannot be permitted to return to work until a minimum of ten days have passed since the date of specimen collection of their first positive COVID-19 test.
If a public health authority issues an order to isolate or quarantine, employees cannot return to work until either the period of isolation or quarantine is lifted. If no period is specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.
The regulations also expressly provide that a negative COVID-19 test shall not be required for an employee to return to work. Prior to these regulations, requiring a negative test to return was discouraged, but not unlawful.
Mandatory Quarantine due to Potential Exposure
If an employee was not diagnosed with COVID-19, but has been exposed to someone with COVID-19, the regulations require the employee to be excluded from the worksite for 14 days after the last known exposure. However, the employee need not be excluded from the worksite by the employer as long as: (1) the local health department has not isolated the employee, and (2) the employee is temporarily reassigned to work where they do not have contact with other persons.
Paying Employees in Quarantine
The regulations provide:
For employees excluded from work … and otherwise able and available to work, employers shall continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job. Employers may use employer-provided employee sick leave benefits for this purpose and consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law and when not covered by workers’ compensation.
There are two exceptions to this requirement, including: (1) any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission; and (2) where the employer demonstrates that the COVID-19 exposure is not work related.
Complying with the Regulations
Beginning on January 1, 2021, Cal/OSHA will have broad powers to issue stop work orders for employers not following these regulations. Employers should immediately implement policies in strict compliance with these regulations.
If you have any questions regarding this article, please do not hesitate to contact Matthew T. Bechtel at The Green Law Group, LLP.
Please note that this article is only intended to provide some general educational information. For your particular legal questions, be sure and consult with an attorney.
Matthew T. Bechtel
(805) 306-1100 ext. 118
matthew@thegreenlawgroup.com