On Thursday, November 19, 2020, the California Occupational Safety and Health Standards Board unanimously passed an emergency Cal-OSHA regulation. The final draft was sent to the Office of Administrative Law (“OAL”) on November 20, 2020. OAL will have 10 days to review and approve the regulation. Thereafter, stakeholders will have five days to submit comments. Thus, the regulation may be enforceable by Cal-OSHA in early December.

The emergency regulation is in effect for 180 days and can be renewed.

The foundation of this emergency Cal-OSHA standard mandates all California employers to draft, implement, and enforce a written COVID-19 Prevention Plan (“Plan”). The Plan must address 11 topics. Like Cal-OSHA has done with Infectious Illness Preparedness Plan (“IIPP”) enforcement, simply failing to incorporate any of the 11 topic areas into your Plan can, alone, lead to an OSHA citation. The 11 topic areas are:

1) System of Employee Communication

2) Identification and Evaluation of COVID-19 Hazards

3) Investigating and Responding to Workplace COVID-19 Cases

4) Correction of COVID-19 Hazards

5) Training and Instructions

6) Physical Distancing

7) Face Coverings

8) Engineering, Administrative Controls, and PPE

9) Reporting and Recordkeeping

10) Excluding COVID-19 Employees From Workplace

11) Return to Work Criteria

Since the pandemic outbreak, Snell & Wilmer has conveyed that developing a written COVID-19 Plan addressing many of these exact topics is a best practice for employers to consider. When the regulation becomes final and enforceable, Cal-OSHA would now be mandating the topics that specifically must be in the Plan. If you have an existing Plan, it would need to be amended to conform with these new and/or more extensive requirements. It would be essential that your amended Plan address all aspects of this new regulation.

If you do not have a written Plan, one must be drafted and implemented immediately to comply with the emergency standard.

Each section of this required Plan has specific, demanding, and, in some instances, rather onerous obligations that employers must meet. Some of the requirements for each section include, but are not limited to, the following:

(2) Requirements for identifying COVID-19 exposures and hazards

• Employees, their representatives, and employers must participate in identifying and evaluating workplace COVID-19 hazards
  • Evaluate potential workplace exposures
  • Review existing prevention controls
  • Ensure compliance with governmental orders
• Implement an employee screening process
• Develop procedures to respond to employees with COVID-19 symptoms

(3) Investigate workplace COVID-19 cases

• Establish procedure to thoroughly investigate cases
  • Practice contact tracing
• Give notice to all employees of potential COVID-19 exposure
  • Includes subcontractors and independent contractors
  • Comply with the new notice of requirements of AB 685
• Provide COVID-19 testing to all potentially exposed employees
  • At no cost to employees during work hours
• Notices must ensure employee confidentiality
• Employees excluded from work due to COVID-19 must maintain earnings, benefits, seniority
  • Not a one-time occurrence
  • Exceptions
    • Employer can prove exposure was non-work related
    • Employee is unable to work

(4) Adopt procedures to correct hazards

• Hazards identified in No. 2 above or as result of positive cases must be abated
  • Abatement actions should be in writing
  • Such actions are key inquiry of Cal-OSHA

(5) Employee training

• Regulation specifies 8 areas of required training
• Documentation of the training, topics covered, trainer, date and employees in attendance is essential

(6) Maintain social distancing

• Lack of social distancing or lack of enforcement is the most frequent complaint received and investigated by Cal-OSHA
• Employees must be separated by at least six feet
  • Exceptions:
    • Momentary exposure
    • Where separation not feasible:
      • If not feasible, high burden for employer
      • If not possible, employer required to install cleanable solid barriers
      • Draft Job Hazard Analysis (JHA) to address situation
• Employer enforcement of social distancing is mandated

(7) Require face coverings

• Provide, require, and enforce proper use of face covering
• Face covering must be clean and undamaged
• Face shields are not compliant
• A negative COVID-19 test not a defense
• Exemptions:
  • Employee alone in room
  • When eating or drinking and six feet away from others
  • Employee wearing respiratory protection
  • Medical or mental condition or disability

(8) Engineering, administrative controls, PPE

• Install barriers
• Maximize HVAC functions
• Implement cleaning and disinfecting plan
  • Routine, scheduled deep cleaning
• Prohibit employee sharing PPE, tools, equipment
  • Where infeasible, minimize sharing, ensure disinfection
• Allow time off for personal hygiene
• Provide proper PPE at no cost
  • N95 masks require respiratory protection program

(9) Ensure timely recordkeeping and reporting

• Follow Cal-OSHA guidance
• Notify local public health department when outbreak
• Notify workers’ compensation carrier
• Notify employee representative
• Record and track all COVID-19 cases
• Document all aspects of regulatory compliance

(10) Exclusion of COVID-19 cases

• Exclude COVID-19 cases from workplace

(11) Return to work

• Comply with CDC and governmental guidance re return
• Maintain employee compensation
• Negative COVID-19 test cannot be required to return to work

Besides drafting, implementing, and enforcing the COVID-19 Prevention Plan in compliance with the regulatory requirements, there are other employer mandates. The regulation dictates additional actions an employer must take when an outbreak or “major COVID-19 outbreak” occurs. There are specific governmental reporting requirements, investigation obligations, and mandates for testing of all employees in the exposed workplace.

Finally, there are regulatory provisions that address employer-provided housing and employer-provided transportation.

Given the strong likelihood that this regulation will be effective and enforceable by Cal-OSHA in early December, employers may want to strongly consider taking proactive steps, including but not limited to:

• Draft, implement and enforce a COVID-19 Prevention Plan
• Draft model notification documentation to be sent to employees, employee representatives, local public health agencies, workers’ compensation carrier, and other employer of affected employees
• Establish screening procedures
• Formulate contact tracing mechanism
• Review your employee pay and benefits obligations
• Solidify relationship with a nearby COVID-19 testing provider
• Develop a COVID-19 transportation policy