On Monday, November 30, 2020, the Office of Administrative Law (OAL) approved emergency temporary standards adopted by California’s Department of Industrial Relations’ Occupational Safety and Health Administration (Cal/OSHA) Standard’s Board to protect workers from hazards related to COVID-19. These Emergency Regulations overlay a patchwork of COVID-19 laws, rules, regulations and “guidance” and set forth myriad obligations most employers must undertake to avoid, mitigate, track, record and report COVID-19 cases and exposures in their workplaces, in employer-provided housing, and on employer-provided transportation.
All employers with workers in California should immediately familiarize themselves with the Emergency Regulations available here, and review and revise their existing policies and practices to ensure compliance. Below are the “top seven” things to keep in mind as employers review the Emergency Regulations:
- The Emergency Regulations Apply To Most Employers: The Emergency Regulations are applicable to all employees and places of employment, except for employees covered by the Aerosol Transmittable Disease Standard, employees working from home, and places of employment with one employee who has no contact with other persons.
- Employers Must Establish A Written COVID-19 Prevention Program: Employers are required to prepare a written COVID-19 Prevention Program. The Prevention Program can be integrated into an “Injury and Illness Prevention Program” (“IIPP”) document or maintained as a separate document. The Emergency Regulations set forth detailed requirements for employers to identify, evaluate, and correct potential COVID-19 hazards in the workplace, as well as for employee communication and training, and record keeping. Many of the requirements may appear familiar to employers who have followed prior guidance from Cal/OSHA and health orders from local jurisdictions. However, employers should not assume that their existing program meets the requirements of the Emergency Regulations as they contain newly defined terms and detailed requirements.
- Employer Duties When There Is A Positive Case: The Emergency Regulations impose on employers specific obligations when responding to positive cases including: identification of and notice — within 1 business day — to potentially exposed employees and their authorized representatives, independent contractors, and other employers present in the workplace during the “high-risk exposure period”; offering free COVID-19 testing during work hours to any employee potentially exposed to COVID-19 in the workplace; and exclusion of “COVID-19 cases” and “COVID-19 exposures” from the workplace for specified time frames. The Emergency Regulations specifically state that an employer cannot require a negative COVID-19 test for returning an employee to work.
- Duty To “Maintain Earnings”: The Emergency Regulations require employers to “maintain” the earnings, seniority, benefits, and right to their former job status for employees who are able and available to work, but excluded from the workplace under the Emergency Regulations to prevent COVID-19 transmission. Employers will need to ensure their leave policies comply with this new paid leave requirement, in addition to the potentially applicable patchwork of paid leave requirements, such as the FFCRA, state and local sick leave laws, and any collectively bargained sick leave obligations.
- Additional Requirements For “Outbreaks” and “Major Outbreaks”: The Emergency Regulations establish numerous affirmative requirements during “outbreaks” (3 or more cases within 14 days or as identified by a local health department) and “major outbreaks” (20 or more cases within 30 days), including testing of exposed employees at specified intervals; investigation and implementation of needed changes to COVID-19 protocols; and notice to the local public health authority within 48 hours. Notably, in the event of a “major outbreak,” employers operating out of buildings and structures with mechanical ventilation are required to install and use high-efficiency rating air filtration systems, evaluate the need for respiratory protection programs (or modification of an existing program), and assess whether to halt some or all operations until COVID-19 hazards are corrected.
- Record Keeping and Reporting: The Emergency Regulations require that employers record and track all employee COVID-19 cases and document steps taken to implement the COVID-19 Prevention Program. The Emergency Regulations set forth some familiar requirements regarding the confidentiality of medical records and the need to protect personal identifying information, but also identify circumstances where unredacted information is to be provided to government health authorities or where redacted information may be provided.
- Employer-Provided Transportation And Housing: Employers who arrange for housing for employees (regardless of whether rent is charged) and employers who provide, arrange for, or secure transportation for their employees during the course and scope of employment, (including arrangements such as shuttles, private charter buses, ride-share vans, and car-pools), must follow specific rules under the Emergency Regulations which require immediate proactive steps.
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These Emergency Regulations reflect Cal/OSHA’s commitment to taking a leading role in fighting the spread of COVID-19. All employers in California would be well served to undertake a full review of the Emergency Regulations and their existing policies and procedures and implement changes as needed to ensure compliance. The lawyers at RJO are here to assist you in these endeavors.
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