The details in the standards provide much-needed clarity for employers on what is required by law to operate during the COVID-19 pandemic.

California has enacted new and detailed emergency safety and health regulations affecting virtually anyone who runs a business, school or other enterprise in the Golden State. California’s Occupational Safety and Health Administration (Cal/OSHA) has issued emergency temporary standards for COVID-19 to clarify employer obligations during the pandemic and to prevent outbreaks. The new standards took effect November 30, 2020, and will remain in effect until May 30, 2021, subject to extension or adoption as a permanent regulation.

All California employers and employees are covered by the new regulations with limited exceptions. The standards make exceptions for workplaces with only a single employee who has no contact with others, employees who are working remotely and employees covered by the aerosol transmissible diseases standard (applicable to healthcare and certain laboratory environments).

The standards expressly require employers to take action previously addressed in industry guidance enacted by the state, but go well beyond that guidance. The new regulations mandate that employers create and implement a written COVID Prevention Program, conduct employee training, implement cleaning and disinfecting procedures, physically distance employees, provide masks and ensure their use, evaluate the need for additional personal protective equipment (PPE), and provide specifics as to what each requirement must address. The regulations further reflect building ventilation standards and other engineering and administrative controls. The details in the standards provide much-needed clarity for employers on what is required by law to operate during the COVID-19 pandemic.

The standards require employers to take specific actions upon learning of positive cases of COVID-19 in the workplace. The regulations detail investigations, notifications to employees and government officials, and for the first time, mandate employer-provided testing for all employees following an outbreak. They also impose COVID-19 obligations on employers who provide housing to employees or transportation to and from work.

Written COVID-19 Prevention Program

Existing industry guidance requires that employers develop a site-specific written COVID-19 Prevention Program. The standards fill in the details, requiring those programs address all of the following:

• A system for communicating to employees about COVID-19;
• Identifying, evaluating and correcting COVID-19 hazards;
• Investigating and responding to COVID-19 cases in the workplace;
• Correcting COVID-19 hazards identified in the workplace, such as unsafe or unhealthy conditions, work practices, policies and procedures that may facilitate transmission of the coronavirus;
• Providing COVID-19 training and instruction to employees;
• Providing for and enforcing physical distancing;
• Providing and requiring the use of face coverings;
• Evaluating the need for and providing PPE;
• Implementing engineering controls related to ventilation and administrative controls related to cleaning and disinfecting;
• Reporting COVID-19 cases at the workplace to state and local officials;
• Tracking COVID-19 cases and maintaining records; and
• Excluding COVID-19 cases and exposed employees from the workplace under defined criteria and addressing return-to-work criteria.

As each required component of the plan is detailed, careful employers will take time to evaluate each requirement. A simple list or general summary may not suffice.

Responding to COVID-19 Cases in the Workplace

The new standards set criteria for managing COVID-19 cases in the workplace. Employers must take action when an employee tests positive for or dies from COVID-19 or is subject to a COVID-19-related isolation order.

Employers who know, or should know, of a COVID-19 case in the workplace are required to take action immediately. The regulations set specific standards and timelines for employers to communicate with and address employees who pose risks, to investigate exposures and to notify other employees who may be impacted. Notification requirements include communications about available COVID-19 benefits, such as Families First Coronavirus Response Act (FFCRA) leave, supplemental paid sick leave, workers’ compensation benefits or employer-provided paid leave, when applicable.

The new regulations address an employer’s obligation to maintain earnings, benefits and seniority of employees excluded from work due to a COVID-19 infection or exposure that is work-related. They also establish specific criteria for returning employees to work. Under the new standards, employers are prohibited from requiring a negative COVID-19 test before permitting an employee to return to work as long as the employee meets specific criteria.

The notification requirements to employees largely overlap with those of AB 685, thereby requiring compliance with that aspect of the law in advance of its January 1, 2021, effective date. Please see our prior Alert on that law for more information.

Responding to Outbreaks and Reporting to Local Public Health Officials

Employers are required to promptly report to local public health officials within 48 hours of becoming aware of an “outbreak,” defined as three or more laboratory-confirmed cases in a 14-day period. The reporting requirements are similar to those of AB 685. However, the new standards also include a requirement that employers include information about total number of cases and the hospitalization and/or fatality status of COVID-19 cases. Employers must update this information as an outbreak continues.

Employee COVID-19 Testing Obligations

The new Cal/OSHA standards go beyond state industry guidance and prior orders by requiring employers provide COVID-19 testing to employees in the event of an outbreak in the workplace. That testing must be provided immediately, at no cost to the employee and during working hours. In the event of a “major” outbreak (20 or more cases within a 30-day period), mandatory testing is required twice per week. In the event of an outbreak, employers must also evaluate whether to halt operations, and must take any other control measures deemed necessary by Cal/OSHA. These requirements are the same for all employers regardless of size. An employer with 10 employees and an employer with 1,000 employees at an exposed workplace both must test 100 percent of employees that fall within specified criteria, without regard to cost.

Failure to Comply

Cal/OSHA has the power to investigate complaints and issue citations and penalties or workplace hazards. AB 685, taking effect January 1, 2021, grants the agency the right to shut down a workplace it believes constitutes an imminent hazard for spreading COVID-19 without advance notice or hearing. The agency announced that enforcement investigators will take an employer’s good faith efforts to implement the emergency standards into consideration, noting, however, that aspects such as eliminating hazards and implementing testing requirements during an outbreak are essential.

Next Steps for the Standards

Cal/OSHA announced it will convene a stakeholder meeting December 18 that will include industry and labor representatives to review the requirements of the emergency regulation, solicit feedback and recommend updates.

What This Means for Employers

The new Cal/OSHA standards are detailed and represent the most significant and onerous obligations for employers related to COVID-19 that have been issued so far. They spell out specific criteria all employers must follow to prevent and respond to COVID-19. Reliance on prior guidance and orders is not enough. Time is of the essence. Employers should take immediate steps to comply, including:

• Prepare a written COVID-19 Prevention Program or review their existing program to ensure compliance with the specific requirements of the standards;
• Prepare cleaning and disinfecting protocols in compliance with the new standards;
• Discuss engineering controls and ventilation requirements with landlords;
• Prepare for employee COVID-19 cases or exposures, including policies, procedures and notices that meet the requirements of the new regulations;
• Prepare for the potential for required COVID-19 testing of employees;
• Prepare for employee trainings and instructions or update prior materials to ensure compliance with the standards;
• Ensure pay practices are up to date in the event of employee exclusion from the worksite; and
• Implement the new recordkeeping and notification procedures.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Lori Ocheltree, Maryam Maleki, Brooke B. Tabshouri, Anjuli M. Cargain, or any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.