Cal/OSHA Standards Board Adopts Revised COVID-19 ETS

**UPDATE – 1/4/2022, Cal/OSHA ETS Non-Compliance Penalties**

 

Below is an overview of potential implications under Cal/OSHA for failure to comply with the standards. The cost of non-compliance can be quite high.

 

Violations of the Cal/OSHA ETS (or any other standard) may range from Regulatory (~$500) to Serious (up to $25,000) per violation.

  • Willful: If Cal/OSHA determines the failure to comply was willful, this may result in a penalty of up to $9,000 for a regulatory violation and up to $125,000 for a serious violation. If the willful violation was determined to have contributed to a serious illness or death, the penalty could be up to $140,000 per violation (in connection with a serious citation).
  • Single or Multiple Violations: The Division has the discretion to allege each violation as an instance (under the same violation) or issue a separate citation. For example, if you fail to investigate three COVID-19 illnesses, you could get three citations, or one citation alleging three instances. Currently, the Division has been issuing a single citation with multiple instances. However, SB 606, which goes into effect in January 2022, will require a single penalty per exposed employee when the violation is found to be egregious. See https://www.littler.com/publication-press/publication/two-new-california-laws-make-significant-changes-employer-safety-and
  • Shut Down: If the Division determined that failure to respond to a hazard created an imminent hazard of COVID transmission, the Division could issue an Order Prohibiting Use (OPU) and shut down the worksite until compliance, in addition to issuing citations. See Labor Code section 6325(b).
  • Criminal Prosecution: Depending on whether the conduct is willful or repeated, can range from imprisonment in county jail for up to one year and fines to the individual up to $15,000.00 and to the company $150,000.00. Also, if a fatality occurs (or referral from the Division) the Bureau of Investigations will conduct a separate investigation and refer to the District Attorney if it is determined that the employer has knowingly violated any safety standard under Labor Code section 6423 and 6425. This could result in criminal prosecution, and felony prosecution if a fatality occurs.

 

This content was provided by WPCCA’s professional counsel and is for general informational purposes only. Readers should contact their own professional counsel for company specific matters in the relevant jurisdiction.

 


 

** PREVIOUS UPDATE – 12/27/2021, Cal/OSHA Standards Board Adopts Revised COVID-19 ETS**

On December 16, 2021, the Cal/OSHA Standard Board approved revisions to the COVID-19 Prevention Emergency Temporary Standards (ETS) based on the latest recommendations from the California Department of Public Health. The revised ETS are effective on January 14, 2022 and expiring 90 days later on April 22, 2022.

 

The revisions include the following:

  • Investigating and responding to COVID-19 cases in the workplace: Employers must continue to properly notify employees, employee representatives and any other workers at a worksite of possible COVID-19 exposures within one business day. This section was updated to give employers more clear instructions on how to notify exposed workers.

 

  • Face Coverings: Masks must fit snuggly over the nose, mouth, and chin with no large gaps on the outside of the face. Additionally, the definition was updated to include more detail on the different types of acceptable face coverings, including the use of fabrics that do not allow light pass through when held up to a light source.

 

  • Testing and Exclusion: The following revisions were made to conform with CDPH recommendations:
    • Employers are required to make COVID-19 testing available at no cost and during paid time to all employees, including those who are fully vaccinated, who have a “close contact” with a COVID-19 case, even if they are asymptomatic.
    • “Covid-19 Test” is now expanded beyond viral tests to include home tests, over-the-counter tests, and point-for-care tests. Importantly, a test cannot be self-administered and self-read unless the employer or an authorized tele-health provider observes.
    • During outbreaks and major outbreaks, employers must now make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available to asymptomatic fully vaccinated employees in the exposed group.
    • Employees who have recently recovered from COVID-19 and those who are fully vaccinated are not required to be excluded from the workplace after “close contact” but must wear a face covering and maintain six feet of physical distancing for 14 calendar days following the last date of contact.
    • “Worksite” was clarified to not include locations where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely.

 

  • Please note that the definition of “fully vaccinated” was NOT changed to require booster shots.

 

  • Return to Work Criteria: The period of time before an employee can return to work after close contact or COVID-19 infection has been revised to be consistent with current CDPH guidelines. These time frames will automatically update if CDPH updates their guidelines pursuant to the Governor’s executive order (N-84-20). Under the re-adoption, employees who had a close contact but never developed symptoms may return to work after 14 days unless one of the following applies:
    • 10 days have passed since the close contact and the person wears a face covering and maintains six feet of distance from others for 14 days; or
    • Seven days have passed since the close contact, the person tests negative at least five days after the close contact, and the person wears a face covering and maintains six feet of distance from others for 14 days.

 

Please also note, employers must continue to maintain an effective COVID-19 Prevention Program that includes identifying and evaluating employee exposures to COVID-19 health hazards, training employees on how to prevent hazards and implementing procedures to correct unsafe conditions.

The readopted ETS does not include OSHA’s vaccination and testing mandate. Contractors should expect to see further changes to Cal Osha’s ETS since state approved plans must either adopt the federal standards or alternate standards that are at least as effective as the federal regulations.

 

Click here to view the “What Employers Need to Know About the December 16th Standards” FAQ Sheet.

Click here to view the “Re-adoption Text ” approved by the Standards Board at the Dec 16th meeting.

Click here to view the Calif Dept of Industrial Relations News Release discussing the revisions to the ETS.

 

This content was provided by WPCCA’s professional counsel and is for general informational purposes only. Readers should contact their own professional counsel for company specific matters in the relevant jurisdiction.

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