Cal/OSHA adopted COVID-19 regulations to protect workers from hazards related to COVID-19. The new standards impose significant requirements on employers. Key provisions require most companies with California-based employees to maintain certain standards, provide specific benefits, and follow certain protocols. Following are the key standards:
- Paid Leave (for individuals with COVID exposure)
- Written Prevention Plan
- Outbreak Requirements
- Exclusion and Return to Work Parameters
- Training and Instruction for COVID safety
Effective Date and Duration
The temporary standards are effective on November 30, 2020 (pursuant to the anticipated approval by the Office of Administrative Law). If approved, the emergency standards will remain in effect for at least 180 days and may be extended.
Generally, all California employers are subject to the new standards. There are three specific exceptions:
- Employees working from home
- Employers with one employee who does not have contact with other individuals
- Employees covered by Cal/OSHA’s Aerosol Transmissible Diseases standard, which is generally applicable to work at certain health care facilities, laboratories, etc.
#1. Paid Time Off Requirement
In General: Any employee excluded from the workplace due to a workplace-related positive COVID-19 test must be provided paid sick leave for the duration of the period of exclusion. There are two exceptions:
- If the employee is unable to work for reasons other than needing to protect other persons at the workplace from possible COVID-19 transmission
- The employer can demonstrate that the COVID-19 exposure is not work-related. Note that this exception is narrow given the California presumption clause under Workers Compensation law that an employee who was working at a facility and contracted COVID-19 contracted that infection at work.
Compensation and Benefits: Employers must 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.
Integration with Other Leave Benefits: Employers may use employer-provided employee sick leave benefits for this purpose and may consider benefit payments from social sources in determining how to maintain earnings, rights and benefits when not covered by workers’ compensation.
Open COVID Paid Leave Questions: There are several important questions that are not addressed in the regulations:
- Multiple COVID Leaves: The proposed standards do not specifically address whether employees are limited to only one such COVID leave. The absence of such a specific limitation would lead to a likely interpretation that paid leave benefits must be provided for any workplace exposure, even if an employee is excluded from the workplace on more than one occasion.
- Existing PTO Integration: Employers can satisfy the paid time off obligations through existing employer-provided employee sick leave benefits and/or supplemental paid sick leave offered in response to COVID-19. However, it is unclear what paid leave must be provided when an employee has exhausted his or her regular employer-provided paid leave entitlements. This scenario is occurring more regularly now as employees have used their paid sick leave and FFCRA earlier in the year.
#2. Written COVID-19 Prevention Plan
In General: The new standards set forth that employers must provide a written COVID-19 Prevention Plan, the elements of which mirror the requirements of California’s Injury and Illness Prevention Plan. Required elements include:
- A system for communicating with employees about COVID-19 prevention procedures, testing, and systems for reporting potential exposure without fear of retaliation
- Identifying, evaluating, and correcting any COVID-19 hazards
- Procedures for investigating and responding to positive COVID-19 cases in the workplace
- Training and instruction for employees
- Procedures for physical distancing and face coverings
- PPE evaluation
- Cleaning and disinfecting standards
- Engineering and administrative controls
- Recording positive COVID-19 cases and informing public health departments of any outbreaks
- Exclusion of COVID-19 cases from workplace
- Return to work criteria
Details: The regulations contain significant detail on all of the elements that must be addressed in a prevention plan. From physical distancing, use of face coverings, cleaning and disinfecting protocols, ventilation, walkway usage, to employee training, investigations, and non-retaliation. The list is extremely comprehensive, and employers should be prepared to address all potential aspects of mitigation and prevention when creating a prevention plan.
Standalone or Integrated: The COVID-19 Prevention Plan may be developed as a standalone document or be incorporated into an employer’s existing Injury and Illness Program. Due to the specific language that must be included in a prevention plan under these emergency standards, employers are strongly encouraged to carefully examine language if incorporating these Cal/OSHA requirements into existing plans.
#3. Outbreak Requirements
Workplace Outbreak Defined: A Workplace Outbreak is defined as three or more COVID-19 cases within a 14-day period at a single location or when a local health department identifies a place of employment as the location of a COVID-19 outbreak.
Workplace Outbreak Requirements: If an employer experiences a Workplace Outbreak, the standards impose numerous requirements:
- Immediately provide testing (as outlined below)
- Exclude from the workplace all employees who test positive for or were exposed to COVID-19
- Investigate the outbreak and implement any necessary corrective action
- Document the investigation pursuant to the standards and any corrective action implemented as a result and
- Notify the local health department within 48 hours of notice of the outbreak.
Major Outbreak Defined: A Major Outbreak is defined as 20 or more COVID-19 cases in an exposed workplace within a 30-day period. If an employer experiences a Major Outbreak, additional requirements are imposed.
Major Outbreak Requirements: In addition to the requirements outlined above for a Workplace Outbreak, employers must also:
- Increase COVID-19 testing to at least twice a week for all exposed employees within the 30-day period and who remain at the workplace and
- Investigate the outbreak and implement any necessary corrective action, including potential stoppage of operations until corrections are made.
- The proposed regulation also includes requirements for notification of potential COVID-19 exposure within one business day to exposed employees, their authorized representatives, independent contractors, or employers at a worksite.
Employers must offer COVID-19 testing at no cost, during working hours (with compensation), to all employees who were exposed to COVID-19 in the workplace. All such employees must be provided a follow-up test one week later and as well as continued testing at least once a week during the quarantine period of 14 days from the date of the COVID-19 outbreak. Testing requirements are triggered by any workplace exposure, not just a Workplace Outbreak or a Major Outbreak.
#5. Exclusion from and Return to Work Parameters
In General: If an order to isolate or quarantine is issued to an employee by a local or state health official, the employee cannot return to work until the specified period is completed or the order is lifted. If no period is specified in the order, the period is assumed to be 10 days from the time the order to isolate was effective or 14 days from the time the order to quarantine was effective.
Any employees diagnosed with COVID-19 and any exposed to COVID-19 within the past 14 days must also be excluded from the workplace until they have satisfied specific return-to-work criteria. One exception exists for circumstances when the employee is reassigned to work in an area where they do not have contact with other individuals until the return-to-work criteria has been met.
Asymptomatic Employees: Employees who test positive for COVID-19 but do not develop any symptoms may not return to work for a minimum of 10 days from the date of the first positive COVID-19 test.
Symptomatic Employees: Employees who test positive for COVID-19 and develop symptoms may not return to work until:
- At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications
- COVID-19 symptoms have improved and
- At least 10 days have passed since COVID-19 symptoms first appeared
Benefits and Pay Continuation: During the exclusionary period, however, employers are obligated to continue providing and maintaining the employee’s earnings, seniority, and benefits.
Cannot Require a Negative Test: The new standards prohibit employers from requiring a negative COVID-19 test for an employee to return to work. Return to work criteria are based solely on time, rather than tests.
Employee Notice Requirements: Employers must provide employees with information regarding COVID-19-related benefits, including those available as workers’ compensation, under the federal Families First Coronavirus Response Act (FFCRA), the California Labor Code, and any leave guaranteed by contract.
Health Department Notice Requirements: Employers must notify their local public health department agency and provide complete case information within 48 hours after three or more COVID-19 cases are known (for guidance on preventing further spread).
Interaction with County Protocols
In addition to these new statewide requirements, many California counties have begun announcing their own revised COVID-19 protocols. As examples:
- Los Angeles County: Under a stay-at-home order to remain in effect through December 20, 2020. The order requires that certain businesses abide by restricted occupancy limits – specifically, essential retail stores may only operate at 35% maximum occupancy, while non-essential retail is restricted to 20% maximum occupancy.
- Santa Clara County: Issued a more restrictive protocol which, among other things, prohibits contact sports at all levels, including pro football franchises.
Employers should keep apprised of updates to local county orders and consider allowing employees to work remotely whenever possible.
California Leading the Way?
Employers can expect increased OSHA enforcement under the Biden administration and possibly emergency temporary standards to combat COVID-19. California is one of a few states leading the way with emergency COVID-19 workplace regulations. Employers can expect that federal standards may be forthcoming and may be modeled after the California regulations.
The newly issued standards require that California employers evaluate their current COVID-19 protocol to ensure compliance. Suggested next steps include the following actions:
- Implement COVID PTO benefit requirements
- Draft and implement COVID-19 Prevention Programs
- Consider implementing the testing protocols
- Start preparing for the new recordkeeping requirements
- Outline a COVID-19 exposure notification process (in contemplation of a final requirement for notification to be passed in the regulation).
While many employers likely already have some protocols in place, the specific requirements provided by these new Cal/OSHA standards may require that employers update their existing procedures and/or documentation to remain compliant with the rapidly changing landscape.
Cal/OSHA has provided the following resources for employers: