Hunton Employment & Labor Perspectives

The California Occupational Safety and Health Standards Board (“Cal/OSHA”) voted on November 19 to implement a stringent new standard for employers to follow when implementing COVID-19 protections in the state.

The state’s rulemaking agency for workplace safety voted unanimously (6 to 0) to pass the “Emergency COVID-19 Prevention Regulations” (the “Standard”), which is expected to go into effect within 10 days (assuming the State’s Office of Administrative Law adopts Cal/OSHA’s regulation).

The standard includes obligations for employers to:

• Write and implement a COVID-19 Prevention Program;
• Identify COVID-19 hazards, with input from employees, and correct any hazards identified;
• Engage in contact tracing following any positive case that involved potential workplace exposure, and then notify and provide testing to potentially exposed employees;
• Require physical distancing and mask wearing, improve ventilation, and maximize outdoor air;
• Not allow workers with COVID-19 or at high risk of exposure to return to worksites until their quarantine ends, and pay employees throughout quarantines;
• Report all outbreaks—defined as three or more cases in two weeks—to the public health department, provide continuous testing to all on-site employees (for 20 or more cases in 30 days, employers must provide twice-a-week testing);
• In employer-provided housing, space beds six feet apart, eliminate the use of bunk beds, and disinfect daily; and,
• In employer-provided transportation, screen workers before boarding, and require them to sit three feet apart and wear face coverings.

The written elements of California employer’s COVID-19 Prevention Program must include, at a minimum:

• A system for communicating, in a form readily understandable by its employees and without fear of reprisal: (a) possible COVID-19 exposures and hazards; (b) policies for accommodating employees with medical or other conditions that put them at increased risk of severe COVID-19 illness; (c) information about access to COVID-19 testing; and (d) information about COVID-19 hazards and the employer’s COVID-19 policies and procedures, to employees and to other employers, persons, and entities within or in contact with the employer’s workplace.
• The identification and evaluation of COVID-19 hazards, which must: (a) allow employees and authorized employee representatives to participate in this process; (b) include the development and implementation of a process for screening employees for and responding to employees with COVID-19 symptoms; (c) develop COVID-19 policies and procedures to respond effectively and immediately to individuals in the workplace who have COVID-19 to prevent the risk of transmission; (d) conduct a workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards; (e) for indoor locations, evaluate how to maximize outdoor air and whether it is possible to increase filtration efficiency to the highest level compatible with the existing ventilation system; (f) include a review of applicable orders and guidance from state and local health departments related to COVID-19 hazards and prevention; (g) evaluate existing COVID-19 prevention controls at the workplace and the need for different or additional controls; and, (h) include periodic inspections to identify unhealthy conditions, work practices, and work procedures related to COVID-19 and to ensure compliance with COVID-19 policies and procedures.
• A process for investigating and responding to COVID-19 cases in the workplace, which must: (a) include procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases; (b) when there has been a COVID-19 case in the workplace, determine when the individual was last present, was first experiencing symptoms, and was tested, who may have had exposure to the individual, give notice within one business day to employees and contractors who may have been exposed (without revealing any personal identifying information about the individual with COVID-19), offer COVID-19 testing at no cost to potentially exposed employees during their working hours and provide them information on benefits, and investigate whether any workplace conditions could have contributed to the risk of exposure and steps to reduce exposure; (c) keep the personal identifying information of COVID-19 cases or persons with COVID-19 symptoms confidential; (d) keep any medical records resulting from this process confidential.
• The correction of COVID-19 hazards, which must include the implementation of effective policies and/or procedures for correcting any unsafe or unhealthy conditions, work practices, policies and procedures in a timely manner based on the severity of the hazard.
• Training and instruction on: (a) the employer’s COVID-19 policies and procedures for protecting employees against hazards; (b) information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws (including workers’ compensation law, the Families First Coronavirus Response Act, Labor Code sections 248.1 and 248.5, Labor Code sections 3212.86 through 3212.88, local governmental requirements, the employer’s own leave policies, and leave guaranteed by contract); (c) the fact that COVID-19 is an infectious disease that can be spread through the air, may be transmitted when a person touches a contaminated object and then touches their face, and that an infectious person may have no symptoms; (d) methods of distancing of at least six feet and the importance of combining physical distancing with the wearing of face coverings; and (e) the fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective; (f) the importance of effective handwashing and using hand sanitizer, and that hand sanitizer does not work if the hands are soiled; (g) the proper use of face coverings and that they are not respiratory protective equipment; and, (h) COVID-19 symptoms, and the importance of not coming to work and obtaining a COVID-19 test if the employee has COVID-19 symptoms.
• Physical distancing, including through the use telework or other remote work arrangements; reducing the number of persons in an area at one time, including visitors; visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path of travel; staggered arrival, departure, work, and break times; and adjusted work processes or procedures, such as reducing production speed, to allow greater distance between employees.
• The use of face coverings, including: (a) providing clean and undamaged face coverings and ensuring they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, and where required by orders from the CDPH or local health department.; (b) when employees are exempt from wearing face coverings (g., due to a medical or mental health condition); (c) procedures for employees not wearing face coverings; (d) allowing employees to wear face coverings unless it could create a safety hazard; (e) measures to communicate face covering requirements to non-employees; and (f) developing COVID-19 policies and procedures to minimize employee exposure to COVID-19 hazards originating from any person not wearing a face covering.
• Other engineering controls, administrative controls, and personal protective equipment, including the use of partitions, improving ventilation, cleaning and disinfecting procedures, the improvement of handwashing facilities, and the use of personal protective equipment (PPE).
• Reporting, recordkeeping, and access
• The exclusion of COVID-19 cases from the workplace.
• Return to work criteria, including for symptomatic COVID-19 cases and non-symptomatic COVID-19 cases.

California employers may find Cal/OSHA COVID-19 guidance and resources here.

The Standard will go into effective immediately following final approval, which is likely to be November 30, 2020.

Cal/OSHA can enforce non-compliance with the new Standard through civil penalties, ranging in size depending on the severity of the violation.  The standard will remain in effect and enforceable for six months after the effective date, but may be extended for up to 14 months.

California employers will need to carefully analyze their workplaces, and perform and consider the criteria provided by the Standard to comply with Cal/OSHA’s regulation.  Employers should continue to look out for updates from Cal/OSHA about the Standard and how it will interpret certain provisions within it, and consult experienced OSHA counsel on managing compliance.