What is California’s OSHA Covid-19 Emergency Standard?
On November 30, 2020, the OAL approved Cal/OSHA’s Emergency Temporary Standard (ETS) to protect employees from Covid-19 exposure in the workplace. These regulations establish several new requirements for California employers, with costly consequences for non-compliance.
With the gravity of the COVID-19 pandemic, it can be presumed that many citations relating to COVID-19 noncompliance would be classified as “Serious,” with a penalty ranging from $18,000 – $25,000 per occurrence. Further, if a violation is found to be “Willful,” the penalties may drastically increase up to $132,765 per occurrence. As such, employers should comply with these regulations immediately.
Notably, the new ETS requirements include:
- Establishing a written COVID-19 Prevention Program;
- Reporting requirements for employers relating to both employees and third parties regarding potential COVID-19 exposure;
- Paid time off for certain employees impacted by COVID-19;
- Providing face coverings, and
- Offering to test and/or testing employees for COVID-19 in certain situations.
The Written COVID-19 Prevention Plan
Similar to an IIPP (Injury and Illness Protection Plan), the new regulation requires that employers develop and implement a written 11-factor Prevention Plan specific to Covid-19 in the workplace. This can be included in an already existing IIPP, or as a standalone program.
The 11-factors are as follows:
- Communication to employees about the employer’s COVID-19 prevention procedures.
Employers must establish a system for communicating with employees about COVID-19 policies and procedures, including a process for employees to report possible exposures and hazards in the workplace. This should include how to access COVID testing, policies for accommodating at-risk employees, and assurance that employees will not face retaliation for reporting COVID concerns or symptoms.
- Identify and evaluate COVID-19 hazards.
This point should include a developed process for screening employees and responding to those who may exhibit COVID symptoms. Guidance should be based on orders and regulations established by the State of California and the local health departments, as well as industry specific guidance where applicable. Workplaces should be individually assessed to determine interactions, areas, activities, processes, equipment, and materials that may present an increased risk of COVID hazards.
Employers should also develop a detailed procedure to respond immediately to individuals at the workplace who are a COVID-19 case so that further COVID hazards and exposure may be reduced.
- Correct COVID-19 hazards.
Employers must implement effective policies and steps to correct unsafe conditions in a timely manner.
- Physical distancing of at least six feet unless it is not possible.
Employees should be at least six feet apart except for momentary exposures, such as passing an employee in the hallway. Some exceptions can be made if physical distancing is impossible – however, employers must be able to demonstrate this via a Job Hazard Analysis or other related documentation.
- Use of face coverings.
The new regulations require that employers provide employees with face coverings, either directly or through reimbursement. Additionally, employers also must ensure that employees are wearing their masks appropriately – over the nose and mouth. Exceptions may be applied if an employee is alone in a room, when eating or drinking, or for certain medical conditions.
- Use engineering controls, administrative controls and PPE.
Engineering controls may include cleanable, solid partitions that reduce the risk of transmission between fixed work locations where employees cannot physically distance themselves – for example, plexiglass barriers. Other engineering controls include HVAC systems that circulate fresh air, or other ways to incorporate fresh outside air into and throughout the workspace. Consider whether PPE may be beneficial and appropriate for the worksite.
- Procedures to investigate and respond to COVID-19 cases in the workplace.
Employers should implement procedures and processes to investigate and respond to COVID-19 cases in the workplace. This includes determining when the exposure occurred, date of testing, and date of the onset of symptoms. Employers must also understand which employees may have been exposed and proceed with notifying those individuals within one business day. Workers who may have been exposed should be offered no-cost testing during working hours. Finally, the Employer should examine the exposure and what, if any, workplace hazards contributed. If determined, steps need to be taken to correct those issues.
- Provide COVID-19 training to employees.
Once an employer has developed the COVID-19 Prevention Program, employees should be trained on its contents and protocols established thereunder. This includes training on policies that protect employees from COVID hazards; COVID-related benefit information; the nature of the disease and how it spreads; the importance of preventative measures such as face masks, hand washing, and social distancing; and the symptoms related to COVID-19 and what to do when they are experiencing symptoms.
- Provide testing to employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas;
Employers should inform all employees on how they can receive testing if desired – whether that is through the employer, local health department, testing sites, or through a health benefit plan. However, an employer may not require a negative test as condition of returning to work.
If there is a potential COVID-19 work-related exposure, employers must offer testing to an employee at no cost and during working hours. Employers should establish a relationship with a provider of COVID-19 testing to ensure compliance.
In the event of an outbreak, which is defined as 3+ COVID-19 cases in a 14-day period, employers must provide periodic (at least weekly or twice per week depending on the magnitude of the outbreak) COVID-19 testing to all employees in an “exposed workplace” (a work location, working area, or common area used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas) during an outbreak.
If an employer experiences a major outbreak, which is defined as 20+ COVID-19 cases in an “exposed workplace” in a 30-day period, additional measures should be taken, including twice-weekly testing and further analysis of the engineering controls of the worksite.
- Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk;
Employers must exclude from work employees who either test positive for COVID-19 or have had COVID-19 exposure from the workplace. These employees, if otherwise willing and able to work, shall continue to receive earnings, seniority, and all other rights and benefits, including job protection. Importantly, there is no cap on the amount of earnings that must be continued if employees are excluded from work as there was with the California Supplemental COVID-19 Paid Sick Leave. However, the ETS language about maintaining earnings (1) does not apply where the employer demonstrates the COVID-19 exposure is not work-related and (2) it allows benefit payments from public sources (e.g., unemployment benefits) to be considered in maintaining earnings.
An employer may not require a negative test as condition of returning to work. Employers should instead look to local health guidance for the most current return to work standards. At the time of this article, they are as follows:
For symptomatic employees, all of these conditions must be met:
- 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
For asymptomatic employees, at least 10 days have passed since the COVID-19 case’s first positive test.
If a licensed health care professional determines the person is not/is no longer a COVID-19 case, in accordance with California Department of Public Health (CDPH) or local health department recommendations, they may return to work.
- Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required.
In addition to following state and local heath department reporting requirements, under the new regulations, employers must also contact the local health department when there is an “outbreak,” as defined as 3+ COVID-19 cases in a 14-day period.
Recording and tracking all 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. Medical information shall be kept confidential.
For additional information on this rapidly evolving topic, it is recommended that employers frequently visit the following resources: