The Emergency COVID-19 Prevention Regulation adopted by Cal/OSHA late this month will go into effect as early as Monday, November 30, 2020. When it becomes effective, the regulation will be the most sweeping and demanding body of COVID-19-related requirements imposed to date on California employers. Employers should prepare now to comply.
Nearly All Employers will be Subject to the Regulation
The regulation generally will apply to all places of employment in California regardless of the type or size of the business. The following are the only exceptions to the regulation:
1. Places of employment with only one employee who does not have contact with other persons;
2. Employees working from home; and,
3. Facilities subject to the Cal/OSHA Aerosol Transmissible Disease (ATD) Standard, which mainly consist of certain healthcare service providers, laboratories, homeless shelters, drug treatment programs, correctional facilities, police and public health services.
The Regulation may become Effective as Early as November 30
The regulation will become effective upon the California Office of Administrative Law (OAL) filing it with the California Secretary of State. The OAL is free to file the regulation with the Secretary as early as Monday, November 30, 2020. Cal/OSHA should post notice here when the regulation becomes effective.
The emergency regulation will be in effect for 180 days and may be extended for two limited periods. Cal/OSHA has announced that it will issue interpretive guidance and frequently asked questions promptly. While the emergency regulation is in effect, Cal/OSHA may initiate its regular rulemaking process in order to put in place a permanent COVID-19 prevention regulation.
Summary of the Emergency Regulation
The 21-page emergency regulation consists of the following sections:
1. A mandate that employers prepare, implement and maintain detailed, written COVID-19 Prevention Programs;
2. Protocols required of employers in the event of three or more COVID-19 cases in a 14-day period or outbreaks in workforces as identified at the time by local health departments;
3. Protocols required in the event of “major COVID-19 outbreaks” (20 or more cases within a 30-day period) in workforces;
4. COVID-19 prevention in employer-provided housing; and,
5. COVID-19 prevention in employer-provided transportation to and from work.
COVID-19 Prevention Programs
The regulation requires all subject employers to “establish, implement and maintain an effective, written COVID-19 Prevention Program.” The Programs must include, for example, procedures for the following:
1. Identifying and evaluating COVID-19 hazards in the workplace. Under the regulation, such hazards are any condition, interaction, practice or process in the workplace that may expose employees to “potentially infectious material that may contain” Coronavirus. As a part of this step, employers must “conduct a workplace-specific identification of all interactions, areas, processes, equipment and materials that could potentially expose employees to COVID-19 hazards.” Employers also must develop and implement a process for screening employees for COVID-19 symptoms, maximize the quantity of outdoor airflow indoors and “conduct periodic inspections as needed to identify unhealthy conditions.”
Importantly, employers must allow for “employee and authorized employee representative (union) participation in the identification and evaluation of COVID-19 hazards,” according to the regulation.
2. Investigating and responding to COVID-19 cases in the workplace. Employer Prevention Programs must include “an effective procedure to investigate COVID-19 cases in the workplace” which satisfies detailed requirements set out in the regulation. Under the regulation, a case consists of “a person” in the workplace (apparently not necessarily an employee) who has tested positive by a viral test for COVID-19, is subject to an order to isolate by a local or state health official or died due to COVID-19.
The regulation also requires that employers provide COVID-19 testing free of charge to employees “who had potential” exposure to COVID-19 in the workplace.
3. Excluding COVID-19 cases from the workplace and maintaining their earnings. Employer COVID-19 Prevention Programs required under the regulation must exclude COVID-19 cases (as defined immediately above) from the workplace until return-to-work criteria set out in the regulation are satisfied. Under the regulation, employers are not allowed to require a negative COVID-19 test for an employee to return to work.
The employer Programs also must exclude employees with COVID-19 exposure from the workplace for 14 days from the last known exposure. Under the regulation, “COVID-19 exposure” consists of an employee being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period during a period the regulation defines the case as having been “high risk” for spreading the virus.
Further, the regulation requires that, when employees are excluded from the workplace because they are a COVID-19 case or had COVID-19 exposure, their employer must “maintain [the] 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.” It is not clear from this language whether the provision means employers must provide job-protected leave or some type of paid leave in the period employees are excluded from the workplace.
The regulation contains additional language that may suggest the provision means that employers are to be provided paid leave: “Employers may use employer-provided employee sick leave benefits [to maintain the employee’s earnings] 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.”
In addition, the Cal/OSHA Standards Board wrote with respect to the provision: “[I]t is important that employees who are COVID-19 cases or who had exposure to COVID-19 do not come to work. Maintaining employees’ earnings and benefits when they are excluded from the workplace is important in ensuring that employees will notify their employees if they test positive for COVID-19 or have an exposure to COVID-19, and stay away from the workplace during the high-risk exposure period when they may be infectious.” (This commentary appears on pages 19-20 of the Board’s “Finding of Emergency” here.)
In any event, the meaning of the provision is not certain at this time. Regardless of whether the provision means some type of paid leave or simply job-protected leave, the requirement is obviously of importance to employers.
4. Return to Work Criteria. Employer Prevention Programs must reflect the return-to-work criteria set out in the regulation. The regulation establishes one set of criteria for COVID-19 cases with symptoms and another set of criteria for COVID-19 cases who tested positive but never developed symptoms. Unlike guidance issued by other agencies, the Cal/OSHA regulation prohibits employers from requiring that employees present a negative COVID-19 test in order to be allowed to resume working.
5. Correction of COVID-19 hazards in the workplace. The required COVID-19 Prevention Programs must provide for employers implementing “effective policies and/or procedures for correcting” COVID-19 hazards “in a timely manner based on the severity of the hazard.”
6. Training of Employees. The regulation requires that employers deliver training to employees on specified facts as now known about Coronavirus, physical distancing, the use of face coverings, handwashing, leave rights and other benefits available to employees impacted by COVID-19, the employer’s COVID-19 policies and procedures, etc.
7. Physical Distancing Employees, Providing Face Coverings, Etc. Employers’ Prevention Programs must ensure that all employees are “separated from other persons by at least six feet” when working, except only where either the employer can demonstrate that six feet of separation “is not possible” or employees are subjected to only “momentary exposure,” such as when people walk by one another. Employers’ Prevention Programs must include the employer providing “clean and undamaged” face coverings as specified by the regulations and ensuring that employees wear them.
8. Engineering and Administrative Controls, PPE. The Programs mandated by the regulation must provide that where fixed work locations cannot be separated by six feet, they be separated by “cleanable solid partitions that effective reduce aerosol transmission” between the employee and others. The Programs must also maximize the quantity of outdoor air provided indoors and satisfy cleaning and disinfecting standards in the regulation.
Employers are required to evaluate the need for PPE, such as gloves, goggles and face shields, and respiratory protection, and provide employees any needed PPE, respirators and eye protection.
9. Recordkeeping and Reporting. Employer Prevention Programs must comply with strict requirements set out in the regulation for reporting COVID-19 cases to local health departments and Cal/OSHA and for recordkeeping.
COVID-19 Infections, Outbreaks and Major Outbreaks
The regulation requires that employers take extensive action whenever three or more COVID-19 cases occur in the workforce within a 14-day period, a local health department identifies a workplace as the location of an “outbreak” or there are 20 or more COVID-19 cases in a workplace within a 30-day period (a “major outbreak”). The actions include weekly COVID-19 testing of all employees who were at the worksite with any of the infected employees. Testing is to continue on a weekly basis, free of charge to employees, until no new COVID-19 cases are detected in the workplace for a 14-day period.
In the event of such infections or an outbreak, the regulation also requires infected employees to be excluded from the workplace, employer investigation of the workplace for factors that contributed to the outbreak, evaluation of any COVID-19 hazards, employer notice to local health departments, etc.
Employer-provided Housing and Transportation
The regulation imposes detailed protocols designed to prevent Coronavirus transmission in employee housing and transportation to and from work provided by employers.
Considerations for Employer Action
I recommend that employers consider taking actions including the following:
1. Study the emergency regulation and prepare to comply. The regulation may be found here.
The regulation is dense and demanding. Despite its length, this post is only a brief summary of certain highlights in the regulation. Particularly given the current record-setting rates of infection throughout California, employers should expect Cal/OSHA to make enforcement of the emergency regulation an immediate priority. The consequence of violations may be significant as, aside from imposing penalties, Cal/OSHA has the authority to shut down facilities found to be in violation.
2. Involve experienced counsel in preparing your COVID-19 Prevention Program. The emergency regulation is unclear in a number of respects and the perspective of qualified counsel will likely be valuable in making the decisions needed to formulate an effective, compliant program.
3. Be alert to the wage and hour, leave, disability accommodation and other issues compliance with the regulation may raise. For example, excluding employees from the workplace as required by the regulation may trigger leave or paid sick leave rights under federal or California law. Time employees spend being screened to enter the workplace or to be tested may be compensable time, etc.
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