Thirteen Things California Employers Need To Know About The New Cal/OSHA COVID-19 Emergency Temporary Standards

Last Friday, Cal-OSHA published its revised, proposed COVID-19 Emergency Temporary Standards (“ETS”). These rules and regulations were promulgated primarily to take into account the impact of vaccinations in our state. They provide incentives for employers with large percentages of fully-vaccinated employees. These new standards are very extensive and have many new requirements for employers.

Cal-OSHA published its original standards in 2020 in order to “reduce employee exposure to the virus that causes COVID-19 and therefore reduce COVID-19 illness and transmission.” It states now that these revised regulations are necessary because many workers remain unvaccinated and “[e]ven if the state is able to reopen fully in June, COVID-19 is likely to remain a significant workplace hazard for months to come, if not longer.”

Cal-OSHA is not giving much time for consideration of these regulations.  The revised COVID-19 ETS will be considered for adoption later this week at Cal-OSHA’s June 3, 2021 video/teleconference meeting.  That meeting is scheduled to commence at 10:00 am PDT.  If you wish to attend or provide comment at the meeting, you can follow these instructions: https://www.dir.ca.gov/OSHSB/documents/agendaJun032021.pdf

The proposed regulations are 26 pages in length.  This blog highlights the most significant requirements of the ETS for California employers so that California employers can become aware of what they are likely to be required to do, should the regulations be adopted by the Standards Board and implemented in the coming weeks.

We expect that the COVID-19 Proposed ETS will be adopted with little or no change from what was published last Friday.  If there are any material changes to the final COVID-19 ETS, we will cover those in a subsequent blog entry.

In order to understand the 13 key provisions below, it is important to understand that the ETS has changed some of the important definitions regarding key terms.  Here are the most relevant:

1. Cal-OSHA has added an exception to the scope of the ETS by clarifying that the ETS does not apply to employees working remotely from a location of their choice.
2. “COVID-19 case” is defined by the regulations as:
   • A person who tests positive for COVID-19;
   • A person who has a COVID-19 diagnosis from a licensed health care provider;
   • A person who is subject to a COVID-19 order to isolate by a local or state health official; or
   • A person who died due to COVID-19 as determined by a local health department or included in county statistics.
3. The revised ETS uses the term “close contact” instead of the former term “COVID-19 exposure.”  This is more consistent with CDC guidance and terminology and is easier to understand.  “Close contact” means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period.  This definition applies regardless of the use of face coverings, but does not include time when the employee was within six feet of the COVID-19 case, but was properly wearing a respirator, when required by the employer.
4. Similarly, the term “exposed group” is used instead of “exposed workplace,” which makes it easier to understand, since the focus is on the potentially exposed group of employees as opposed to the work location.  Also, under the current ETS, any COVID-19 case who was present in the workplace during their high-exposure period would qualify as an “exposed workplace.”  The new proposed definition of “exposed group” now only includes those cases where employee COVID-19 cases are present.
5. The ETS has clarified the definition of “face covering” to specifically exclude “a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric” as all of these may actually be worse than wearing no face covering at all.
6. A very important definition in the revised ETS is the use of the term “fully-vaccinated,” since there is significant leniency granted for “fully-vaccinated employees.  “Fully-vaccinated” means the employer has documentation establishing that the employee received their full dose of the vaccine at least 14 days prior (either both doses of Pfizer or Moderna, or one does of the J&J vaccine).  The ETS does not state what “documentation” is needed, but one should assume that the employer needs to do more than simply take the employee’s word for it, given the importance of being fully-vaccinated. Employers must remember that any information regarding an employee’s vaccination status must be kept confidential and separate from the regular personnel file.

With these definitions in mind, here is a summary of 13 key provisions from the revised ETS:

THE PROPOSED EMERGENCY TEMPORARY STANDARDS DO NOT PREEMPT MORE STRINGENT RULES

1.  The Proposed ETS does not preempt other more stringent regulations, as it expressly states that the regulations are not intended “to limit more protective or stringent state or local health department mandates or guidance.”  Thus, it will still be important for all employers in California to make sure there are not county or city regulations that provide additional or more stringent requirements than the Cal-OSHA ETS rules.

A WRITTEN COVID-19 PREVENTION PROGRAM IS REQUIRED FOR ALL CALIFORNIA EMPLOYERS

2.  All California employers must have a written COVID-19 Prevention Program.  This program can either be a separate program, or it can be integrated into the employer’s Injury and Illness Prevention Program.  There are many specific items that must be included in the COVID-19 Prevention Program, and while the Program itself is not a new requirement, the ETS contains new requirements that must be incorporated into your current Program.  Therefore, California employers should compare their COVID-19 Prevention Program with the revised ETS language to ensure that their Program meets all requirements.

NEW TESTING REQUIREMENT FOR NON-VACCINATED EMPLOYEES WHO SHOW SYMPTOMS AND NEW EXCLUSIONS TO TESTING REQUIREMENTS

3. Under the current ETS, employers are required to offer COVID-19 testing to employees when they have a close contact in the workplace.  The proposed revisions to the ETS provide some important exceptions to the testing obligations, including, but not limited to: (1) testing is not required after a close contact if the employee was fully-vaccinated (two weeks from last injection) before the close contact, and do not have symptoms; and (2) for those employees who had COVID-19 and returned to the workplace and remain symptom free, then testing is not required for the 90 days after initial onset of symptoms, or for those without symptoms, for 90 days after their first positive COVID test.

THE PROPOSED ETS PROVIDES SPECIFIC RULES ABOUT WHAT TO DO WHEN THERE IS A COVID-19 CASE IN THE WORKPLACE

4. The ETS provides specific guidelines about what California employers must do when there has been a COVID-19 case at their place of employment.  If a COVID-19 case occurs in the workplace, the California employer must take the following actions:

• Determine the date and time the COVID-19 case was last present in the workplace and, if possible, determine the date the COVID-19 case first had symptoms, if any; and
• Determine what persons had “close contact” with the COVID-19 case during the applicable high-risk exposure period.
  • “High risk exposure period” means either
    • For cases where symptoms develop, the period from two days before symptoms developed until the date in which all of the following occur:
      • 10 days have passed after symptoms first appeared;
      • 24 hours have passed with no fever (w/o the use of medication to reduce fever); and
      • Symptoms have shown improvement.
    • For cases where no COVID-19 symptoms develop, the period from two days before until ten days after the specimen for their first positive test for COVID-19 was collected.
• Notice - Within one business day of the time the employer had actual or constructive knowledge of the COVID-19 case, the employer must give written notice to all employees who were present during the COVID-19 case’s high exposure period, that they may have been exposed.  The notice can be given by personal service, email or text message, as long as it can reasonably be expected to be received within one business day.  The notice must include the plan for disinfection of the work location. The notice must also be given to all independent contractors or other employers at the worksite. If an employee who may have been exposed belongs to a union, the notice must also be provided to their union.
• Verbal Follow-Up - The new ETS contains a new, oral follow-up notice requirement.  Specifically, the revised ETS provides:

“If the employer should reasonably know that an employee has not received the notice, or has limited literacy in the language used in the notice, the employer shall provide verbal notice, as soon as practicable, in a language understandable by the employee.”

           To comply with this new requirement, plan to provide notice in the language normally used for safety meetings or instructions if different than English.

• Testing – As noted above, the employer must make COVID-19 testing available at no cost, during paid work time to all employees who had close contact with the COVID-19 case during the high risk exposure period, except fully-vaccinated employees or those who have recovered from COVID-19 within the last 90 days prior to close contact.
• Investigation – The employer must investigate whether workplace conditions could have contributed to the risk of COVID-19 exposure and what could be done to reduce future exposure risks.

DUTY TO MAINTAIN A WORKPLACE SAFE FROM COVID-19

5. Employers have a general duty to implement policies and procedures to correct unsafe and unhealthy conditions that might create a risk of COVID-19 transmission.  This duty is ongoing and will be interpreted broadly.

DUTY TO PROVIDE COVID-19 TRAINING AND INSTRUCTION

6. According to the ETS, California employers must provide effective training and instruction to all employees regarding COVID-19.  This training is very specific and includes but is not limited to:

• information about the employer’s COVID-19 policies and procedures;
• training about the legal benefits to which employees are entitled to related to COVID-19 including leave rights, workers’ compensation rights;
• the COVID-19 benefits that the employer provides that are not legally required;
• information about how COVID-19 is transmitted;
• information about the rules of the employer concerning physical distancing;
• information about face covering benefits and the limitations of face coverings when compared to N95 and other similar respirators;
• training on how to properly wear a respirator and perform a seal check, when respirators are provided for voluntary use;
• the importance of hand washing and certain information about hand sanitizing;
• the importance of staying home and getting a COVID-19 test if have any COVID-19 symptoms;
• the importance of vaccination against COVID-19 and certain information about vaccines;
• information on how to access COVID-19 testing and vaccination; and
• other specific training requirements in the Proposed ETS.

PHYSICAL DISTANCING REQUIREMENTS

7. California will maintain physical distancing requirements in the workplace for at least two more months.  Unless you are properly wearing a respirator required by the employer, all employees must maintain six feet of physical distancing until July 31, 2021 if you are either (a) working indoors or (b) working outdoors and cannot maintain at least 6 feet of separation, or at mega events (events with over 10,000 customers/participants such as concerts, sporting events, festivals etc.).  The ETS describes other specific physical distancing requirements and guidelines.

Alternatively, an employer may satisfy the physical distancing requirement by providing respirators to all employees who are not fully-vaccinated for voluntary use.

N95 RESPIRATORS MUST BE PROVIDED FOR NON-VACCINATED EMPLOYEES

8. Starting July 31, 2021, all employees who are not fully-vaccinated shall be provided N95 filtering respirators or other NIOSH approved respirators for voluntary use.  Employers must train all employees who are provided with such respirators how to properly wear the respirator, how to perform a seal check, and the fact that facial hair interferes with a seal.  Although the ETS requires employers to encourage respirator use and requires providing the correct size respirator to non-vaccinated employees, they do not have to wear respirators – they just have to be available for them.

FACE COVERINGS ARE STILL REQUIRED IN THE WORKPLACE IN MANY INSTANCES

9. California employers are still required to provide face coverings and ensure they are worn by all employees, over the nose and mouth when employees are indoors, or are outdoors and within six feet of other people, and in other situations when required by the California Department of Health or any local health department order.  The ETS provides a number of additional mandates and guidelines regarding face coverings, which include, but are not limited to:

• Fully-vaccinated employees, who do not have COVID-19 symptoms, do not need to wear face coverings:
  • If they are alone in a room or when they are in a room where all others are fully-vaccinated; or
  • If they are outside.
• The ETS also provides a list of other times when face coverings are not required, even for unvaccinated employees.  This includes when eating and drinking (as long as social distancing is being maintained when doing so).
• Employers cannot prevent any employee from wearing a face covering, even if not required to do so by law, unless doing so creates a safety hazard.
• Employers must implement communication methods to ensure that non-employees are aware of the face covering requirements of the premises.

RULES REQUIRING THE EXCLUSION OF COVID 19 CASES FROM THE WORKPLACE

10. The California Department of Public Health recently updated its Guidance that fully-vaccinated employees do not need to be excluded following a COVID-19 exposure, as long as they are asymptomatic.  Cal-OSHA has now updated the ETS to include this same allowance, as follows:

• “Close contacts” will continue to be excluded except when (1) they were fully-vaccinated before the close contact and are asymptomatic, or (2) recovered from COVID-19 in the last 90 days.
• All “COVID-19 cases” will continue to be excluded, regardless of vaccination status.

If they do not meet an exception, close contacts who do not develop any symptoms may return to work after 10 days have passed since the last known close contact.

For close contacts who do develop symptoms, they cannot return to work until:

• at least ten days have passed since symptoms first appeared;
• at least 24 hours have passed with no fever, without the use of medications; and
• symptoms have improved.

Similarly, COVID-19 cases who are asymptomatic cannot return to work until 10 days have passed since the date of their first positive test; and symptomatic COVID-19 cases cannot return until the same conditions are met as for symptomatic close contacts, per above.

The employer cannot require a negative test before allowing a COVID-19 case to return to work.

EXCLUSION PAY

11. The new ETS requires that employers pay all excluded employees their full wages and maintain all benefits as if the employer had not excluded them (i.e. for whatever shifts they missed). Employers may use sick leave or PTO for this purpose, but only to the extent provided by law.  The revised ETS also provides that wages paid as exclusion pay must be paid no later than the next regular pay date after the pay period(s) in which the employee is excluded.

The exclusion pay requirement does not apply “where the employee received disability payments or was covered by workers’ compensation and received temporary disability.”  Nor is it required when the employer can demonstrate the close contact was not work related.

Notably, the revised ETS eliminates an exception in the current ETS, which is that exclusion pay is not required when the excluded employee is not “otherwise able and available to work.”  Therefore, under the revised ETS even if an excluded employee is not able to work – due to severe COVID symptoms or otherwise – the revised ETS still requires that the employer provide exclusion pay.

Since the revised ETS specifically provides that unpaid exclusion pay is “subject to enforcement through procedures available in existing law,” employers should assume that employees will pursue individual claims and even PAGA claims for unpaid exclusion pay.

RULES WHEN THERE IS A COVID 19- OUTBREAK IN THE WORKPLACE

12. The current ETS has several specific requirements that apply when there is an “outbreak” (3 or more cases during a 14-day period) and a “major outbreak” (20 or more cases during a 30-day period).  For any “outbreak” now, the proposed revisions make the following changes:

• Testing is not required for asymptomatic employees who were fully-vaccinated before the outbreak, and employees who recovered from COVID-19 in the last 90 days;
• Physical distancing and other current safety precautions will be reinstated during the outbreak (even if after July 31, 2021); and
• The use of MERV-13 or higher efficiency filters (if compatible with the ventilation system) will now be required even during regular outbreaks.

For “major outbreaks,” there are some additional existing requirements such as providing testing twice a week (versus once a week for a “regular” outbreak), determining the need for a respiratory protection program, and determining whether to suspend some or all operations until the COVID-19 hazards have been corrected.

SPECIAL RULES OF THE EMPLOYER PROVIDES HOUSING OR TRANSPORATION FOR ITS EMPLOYEES

13. The proposed revisions make several changes to the provisions of the ETS that apply to employer-provided housing and employer-provided transportation. Again, there is significant leniency granted to employers with fully-vaccinated employees.  Employers who provide housing or transportation and are governed by these provisions will want to review these revisions closely with counsel.

Once approved by the Standards Board (which will likely happen at the June 3 meeting), the Office of Administrative Law (OAL) will have 10 calendar days to approve the regulations.  It is therefore anticipated that this new ETS will become effective on or about June 14, 2021.  The revised ETS will likely be in effect until at least the end of the year; however, employers should keep in mind that the Standards Board could still modify the ETS down the road, extending its duration even further.

The revised ETS is set to go into effect right about the time California has announced it is officially re-opening, but as one can see from the foregoing, to say that California is “lifting all restrictions” on June 15, 2021 is a misnomer.  California consumers may have considerably more freedom to go out to dinner, attend movies and the like, but this re-opening is going to continue to present significant challenges for California employers.

Employers should review the proposed revisions to the ETS carefully, and with their HR staff and employment counsel.