Cal/OSHA’s Emergency COVID-19 Regulations

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On November 19, 2020, the California Occupational Safety and Health Standards Board (“Board”) adopted new emergency regulations that impose burdensome requirements on employers related to their prevention of and response to COVID-19 in the workplace.  The Board’s adoption triggered a 10-day window for the California Office of Administrative Law (“OAL”) to review and approve the emergency regulations.  The OAL approved the regulation, as anticipated, on November 30.

Because employers may are required to comply with the regulations as of the OAL’s approval, they should take immediate steps to study the emergency regulations, consult with legal counsel, and implement necessary changes to workplace policies and procedures.  Such changes likely will impact compensation policies as the new regulations notably require employers to continue and maintain earnings, seniority, and all the rights and benefits for those employees who are excluded from the workplace due to the contraction of or exposure to COVID-19.  Given the need for employers to immediately comply with the new regulations, we provide an overview of the key requirements.

Who is Covered?

The regulations generally apply to “all employees and places of employment,” except for:  workplaces with (1) one employee who does not have contact with other persons, (2) employees working from home, and (3) employees covered by the aerosol transmission standard (i.e., employees working in specified health care facilities as well as limited non-health care facilities).

What is Required?

The 21 pages of new regulations are broken down into five new sections to be included in Cal-OSHA’s General Industry Safety Orders:

• Section 3205:  General COVID-19 Prevention
• Section 3205.1:  Multiple COVID-19 Infections and COVID-19 Outbreaks
• Section 3205.2:  Major COVID-19 Outbreaks
• Section 3205.3:  COVID-19 Prevention in Employer-Provided Housing
• Section 3205.4:  COVID-19 Prevention in Employer-Provided Transportation to and from Work

One of the primary requirements of the new emergency regulations requires covered employers to “establish, implement, and maintain an effective, written COVID-19 Prevention Program” (“Program”).  The eleven elements of the Program found in Section 3205 include:

1. System for Communicating:  Employers must ask employees to report COVID-19 symptoms, possible exposures, and possible COVID-19 hazards at the workplace.  Employers must describe procedures or policies for accommodating employees with conditions that put them at increased risk of severe COVID-19 illness.  Employers must also provide information about access to COVID-19 testing, COVID-19 hazards, and the employer’s policies and procedures related to COVID-19.

2. COVID-19 Hazard Identification and Evaluation:  Employers are required to establish processes, policies, and procedures to initially and periodically identify and evaluate COVID-19 hazards in the workplace.

3. Investigation and Response to COVID-19 Cases:  Employers must establish a procedure to investigate COVID-19 cases that includes verifying COVID-19 case status, receiving information regarding COVID-19 test results and the onset of COVID-19 symptoms, and identifying and recording COVID-19 cases.  Employers also must take specific steps in response to a case of COVID-19 in the workplace, including, but not limited to, determining when the COVID-19 case was last present in the workplace, who may have been exposed, and notifying those employees or contractors who may have been exposed within one business day.  Additionally, employers must offer COVID-19 testing at no cost during working hours to all employees who were potentially exposed to the COVID-19 case and provide information on COVID-19-related benefits.  Employers must also conduct an investigation to determine whether any workplace conditions could have contributed to the risk of COVID-19 exposure and what could be done to reduce any such risks.

4. Correction of COVID-19 Hazards:  Employers must correct unsafe or unhealthy conditions, work practices, policies, and procedures in a timely manner based on the severity of any COVID-19 hazard.

5. COVID-19 Training and Instruction:  Employers must train employees on COVID-19 prevention measures, including physical distancing, face coverings, and hand washing.  Employers must also instruct employees on the symptoms of COVID-19, the importance of not coming to work and obtaining a test if the employee has symptoms, COVID-19-related benefits, and how COVID-19 is spread.

6. Physical Distancing:  Employees must be separated from other persons by at least six feet, except where employers can demonstrate that such separation is not possible and except where there is momentary exposure while persons are moving.  If it is not possible to maintain at least six feet of distance, individuals must be as a far apart as possible.

7. Face Coverings:  Employers must provide face coverings and ensure that they are properly worn, clean, and undamaged.  There are various exceptions, such as when an employee is alone in a room and when an employee cannot wear a face covering due to a medical condition.

8. Other Controls and Personal Protective Equipment (PPE):  Employers are required to implement various engineering and administrative controls, such as installing cleanable solid partitions between individuals who cannot maintain physical distancing, maximizing the quantity of outside air provided in buildings with mechanical or natural ventilation, and implementing cleaning and disinfecting procedures.

9. Reporting, Recordkeeping, and Access:  In addition to reporting COVID-19 cases at the workplace to local health departments whenever required by law, employers must continue to immediately report to Cal-OSHA any COVID-19-related serious illnesses or deaths occurring in a workplace or in connection with employment.  Employers must maintain records of the steps taken to implement the Program and must make the Program available at the workplace to employees, authorized employee representatives, and Cal-OSHA representatives immediately upon request.  Additionally, employers must keep and record COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test.  All medical information must be kept confidential.

10. Exclusion of COVID-19 Cases:  Employers are required to exclude any person from the workplace who has tested positive for COVID-19 or is subject to a COVID-19-related order to isolate issued by a local or state health official.  Employees who are excluded from the workplace and are otherwise able and available to work must continue to receive and maintain their earnings, seniority, and all other rights and benefits “as if the employee had not been removed from their job.”  This requirement does not apply to employees who are unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission and employees for whom the employer demonstrates that the COVID-19 exposure is not work related.  Employers need not exclude employees from the workplace, so long as (1) they are temporarily reassigned to work where they do not have contact with other persons, and (2) they are not otherwise isolated or excluded from the workplace by the local health department.

Unlike the federal and state COVID-19 paid leave statutes that place limits on the number of hours and amount of pay an employee may receive related to his or her absence for COVID-19-related reasons, the emergency regulations do not place any cap on the duration and amount of pay and benefits an employee may receive while excluded from the workplace. Employees could theoretically be excluded on several occasions, which could warrant payment and benefits that exceed other paid leave benefits.

Given that the Board’s statutory mandate under California Labor Code section 142.3 is to adopt and promulgate safety and health orders, there is a question whether the Board exceeded its authority in regulating matters of worker wages and benefits.  This concern has been raised before the Board and will be raised to the OAL.  The Board, however, implemented a similar compensation continuation requirement in connection with lead exposure regulations (see 8 C.C.R. § 5198(k)), and federal health and safety regulations contain a similar pay and benefits requirement in connection with lead exposure.  A challenge to the federal regulation was rejected.  See United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1228 (D.C. Cir. 1980).  Given some of the unique aspects of the recently enacted pay and benefits requirement, that federal court decision may be distinguishable.

11. Return to Work Criteria:  COVID-19 cases with COVID-19 symptoms cannot return to work until (1) at least 24 hours has passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications; (2) COVID-19 symptoms have improved; and (3) at least 10 days have passed since COVID-19 symptoms first appeared.  For asymptomatic COVID-19 cases, at least 10 days must pass “since the date of specimen collection of their first positive COVID-19 test” before those individuals may return to work.  A negative COVID-19 test is not required for an employee to return to work.  Additional rules govern instances where a local or state health official issues an order to isolate or quarantine.

In addition to the Program required by Section 3205, the new regulations found in Sections 3205.1 and 3205.2 institute rigorous exclusion, notification, investigation, correction, and testing requirements where a workplace has been identified as having a COVID-19 outbreak.  Employers who provide employees with housing or transportation to and from the workplace should study the requirements set forth in Sections 3205.3 and 3205.4 governing the prevention and response to COVID-19 in those settings.