Cal/OSHA Emergency COVID Regulation: Overview and Resources

Overview

On November 19, 2020, the Cal/OSHA Standards Board passed a new emergency temporary COVID-19 standard. The standard (8 CCR §3205) now goes to the Office of Administrative Law (OAL) for approval and will likely go into effect by the end of November. As an emergency temporary regulation, it will remain effective for six months. This standard applies to most employers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.

Under the new standard, employers must have a written COVID-19 Prevention Plan that addresses the following:

• • System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
  • Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
  • Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice about potential exposures, and offering testing to workers who may have been exposed.
  • Correcting COVID-19 hazards – including correcting unsafe conditions and work practices as well as providing effective training and instruction.
  • Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.
  • Face coverings – providing face coverings and ensuring they are worn.
  • Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.
  • Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
  • Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
  • Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
  • Specific requirements for infection prevention in employer-provided housing and transportation to and from work.

In May 2020 Cal/OSHA issued its “Interim General Guidelines” on Protecting Workers from COVID-19. Cal/OSHA’s regulations required protection for workers exposed to airborne infectious diseases such as the coronavirus disease (COVID-19). The Interim guidelines identified specific infection control measures that for California employers to implement and include in their Injury and Illness Prevention Program (IIPP) as required by 8 CCR §3203 and 8 CCR §1509 (construction). SCGMA provided a COVID-19 management plan template to its members in October 2020.

Bottom Line:

The main elements to the new standard that differ from interim guidelines are as follows:

• The employer must identify, evaluate and correct COVID hazards. Identification and evaluation need to be conducted with the participation of employees.
• Employers will need to investigate and notify employees who might have been exposed within one day.
• Employees who may have been exposed must be offered COVID testing at no cost.
• COVID cases must be reported to local health authorities.
• Criteria for employees to return to work after recovering from COVID-19.
• Employers must implement certain protocols if there is an outbreak in the workplace of three (3) or more COVID-19 cases within a 14-day period until there are no new cases for a 14-day period. This includes mandatory testing of all employees in the exposed workplace, immediately and one (1) week later and investigation of possible workplace related factors that contributed to the outbreak.

In addition, when the temporary standard becomes effective Cal/OSHA may cite and pursue civil penalties against an employer who does not comply with the new emergency temporary standard requirements.

Resources and Additional Information

The Cal/OSHA emergency temporary regulation on COVID-19 infection prevention was approved on November 30, 2020 and is now in effect. This regulation is not retroactive. Therefore, its provisions, including the obligation to provide paid time off to employees exposed to the virus, only come into effect on November 30 even if the employee was excluded from the workplace prior to November 30.

Cal-OSHA has already released the following three attached guidance documents which should be reviewed carefully by employers.

1. 1. A brief Fact Sheet –What Employers Need to Know
   2. A Model Written Covid-19 Prevention Program. Employers are not required to use this Model Program — you may create their own Program or use another Covid-19 Prevention Program (CPP). If desired, you can create a CPP by combining and incorporating elements of this program into your existing Injury and Illness Prevention Program (IIPP).
   3. A FAQs Page which summarizes many of the regulation’s requirements. According to OSHA, these FAQS will be updated and revised on an ongoing basis.

The FAQs deal with a couple of questions that may be of special interest to employers.

With respect to implementation of and compliance with the new Regulations, the FAQs state that “if an employer is unable to comply with the Regulation by its effective date (Nov. 30, 2020), Cal/OSHA enforcement personnel will consider an employer’s good faith efforts in working towards compliance, but some aspects, such as eliminating hazards and implementing testing requirements during an outbreak are essential.”  (See Q&As under section “Effective Date”)

With respect to whether an employer must pay an employee while the employee is excluded from work, the FAQs provide that “if the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay and may offset payments by the amount an employee receives in other benefit payments. These obligations do not apply if an employer establishes the employee’s exposure was not work related.” (See last Q&A under Section “Addressing Covid-19 Cases in the Workplace.)

Employers should familiarize themselves with these new regulations and review their existing Covid Prevention Program and/or Illness and Injury Prevention Program to confirm that they comply with the new Temporary Regulations.