Hunton Employment & Labor Perspectives

California employers now have some guidance from the state in implementing the new “Emergency COVID-19 Prevention Regulations” (“CA ETS”) that went into effect on November 30.

Employers were given no lead-time to comply with these stringent new rules by the California Occupational Safety and Health Standards Board (“Cal/OSHA”).  The CA ETS does contain obligations that employers already have in place, which are largely consistent with Centers for Disease Control and Prevention (“CDC”) guidance. But, as explained in an earlier update, the regulations also include significant onerous new obligations.  Faced with the threat of civil penalties, employers will now need to implement costly new prevention measures at a time when the pandemic is already putting a huge strain on the economy and businesses in particular. These new measures may ultimately put some employers out of business.

On December 1, Cal/OSHA issued guidance with Frequently Asked Questions (“FAQs”), featuring 31 questions and answers from the state’s rulemaking agency for workplace safety. Cal/OSHA also provided a model COVID-19 Prevention Plan and links to other resources.

The CA ETS requires testing of all close contacts of a positive case and, in the event of an outbreak, the rule requires testing of all workers in the “exposed workplace.”  Cal/OSHA defines an outbreak as three or more employees testing positive for COVID-19 in two weeks who share the same exposed workplace.  Employers faced with an outbreak will have to look at where they have “exposed workplaces,” which are locations or common areas used by the employees with COVID-19 during the high-risk exposure period.  Exposed workplaces include bathrooms, aisles, break or eating areas and waiting areas. The only areas where an employee has been present that are not included are those where masked workers pass through on their way to somewhere else.  But, as a practical matter, if workers ever stop to speak to one another in that area, it will no longer be an exception and will then be included as an exposed workplace.

In many workplaces, the “exposed workplace” will be the entire facility.  Employers should consider whether any means exist to restrict worker movement to avoid this outcome.  For example, consider assigning workers to specific break rooms or specific bathrooms with teams assigned to specific areas of the building, if feasible and consistent with business operations.

In the event of an outbreak, after identifying the exposed workplaces, employers must then test all employees in the exposed workplace and quarantine any employees who test positive or who were exposed.  Tests must be repeated weekly for workers who were present in the exposed workplace until the workplace no longer qualifies as an outbreak.

Ultimately, the cost of an outbreak or major outbreak (20 or more cases in a month) could be catastrophic.  For employers faced with a major outbreak, the CA ETS also contains costly ventilation requirements.  In addition to other requirements, employers with a major outbreak must make changes to mechanical ventilation systems, including increasing filtration efficiency and evaluating whether HEPA air filtration units are needed in poorly ventilated areas.

Even if an outbreak is not considered “major,” the burden for employers is still considerable. Employers that do not already have a testing program set up for their employees on site will find setting up on-site testing to be prohibitively expensive and off-site testing to be impeded by transportation issues. Testing requirements are particularly costly because time spent testing non-exempt workers is compensable time.  Also, the CA ETS requires a 14-day quarantine period, not the recently shortened CDC quarantine period of 7-10 days.  Also, the quarantine period must be paid through applicable paid leave or, once exhausted, straight pay, although other sources of pay may be offset.  One caveat is that employers do not have to pay for quarantine that resulted from non-work-related exposure.

Employers should swiftly implement these new regulations.  The recent guidance documents provide that “Cal/OSHA enforcement personnel will consider an employer’s good faith efforts in working towards compliance,” but it often is true that CalOSHA and the employer have different views regarding what effort constitutes good faith.

The next steps for Cal/OSHA include a stakeholder meeting in December, where the agency intends to explain its new regulations, answer questions and give interested parties an opportunity to provide feedback as they move towards a permanent standard. An advisory committee meeting will follow.