The California Division of Occupational Safety and Health (Cal/OSHA) unanimously passed new mandatory emergency temporary standards which went into effect on Monday, November 30, 2020 and may be extended for up to 180 days, with possible extensions.
California follows Oregon, Michigan and Virginia in implementing the Emergency Temporary Standards (ETS). Since August 2020, Cal/OSHA received nearly 8,000 complaints regarding workplace safety and as of September 4, 2020, cited 11 employers for failure to ensure that employees are maintaining proper physical distancing or not properly recording COVID-19 illnesses. Penalties for violation of the standards include monetary citations ranging from $2,025.00 to $51,190.00.
California’s new ETS include:
- Write, implement and communicate to employees a COVID-19 Prevention Program.
- Address how employees can communicate symptoms or possible COVID-19 exposures to employers.
- Address procedures for accommodating employees with medical or other conditions at high risk for severe COVID-19 illness.
- Address employees’ access to COVID-19 testing.
- Address COVID-19 related benefits.
- Identify, evaluate and correct COVID-19 hazards.
- Develop and implement screening process of employees with COVID-19 symptoms.
- Develop and implement process for responding to employees with COVID-19 symptoms.
- Conduct a site-specific evaluation of potential COVID-19 transmission.
- Allow employees or employees’ authorized representative to participate in hazard identification and evaluation.
- Conduct periodic inspections of workplace to ensure compliance and check for new hazards.
- Review state and local guidance and orders on hazard prevention.
- Provide training and instruction to employees of COVID-19 policies and procedures.
- Require physical distancing of at least six feet where possible.
- Require wearing face covers.
- Require frequent washing of hands with soap and water or hand sanitizer.
- Implement engineering controls, administrative controls and personal protective equipment including installing solid partitions between work locations where it is not possible to physically distance, improve ventilation and maximize outdoor air, implement procedure for cleaning commonly touched surfaces and provide personal protective equipment (ex: gloves, eye protection, etc.) for employees exposed to hazards.
- In employer-provided housing, beds must be spaced six feet apart, no bunk beds are permitted and housing must be disinfected daily.
- In employer-provided transportations, employees must be screened before boarding and must sit three feet apart with face coverings.
- Investigate and respond to COVID-19 cases in the workplace.
- Determine the day and time the COVID-19 case was last present.
- Determine who may have had COVID-19 exposure.
- Give notice of potential COVID-19 exposure within one business day without revealing any personal identifying information.
- Investigate the exposure, whether workplace conditions could have contributed to risk of exposure and what corrections are needed to reduce exposure.
- Offer COVID-19 testing at no cost to employees when one or more employees had COVID-19 exposure at the workplace.
- Offer free testing to all on-site employees potentially exposed to COVID-19 in the workplace.
- In an “outbreak” during which three or more employees in an exposed workplace are diagnosed with COVID-19 within a 14-day period: Immediately provide testing to all employees in the workplace and repeat the testing one week later and continue testing employees weekly until the workplace no longer qualifies as an outbreak. If 20 or more cases of COVID-19 in the workplace in 30 days: Offer free testing to employees twice a week.
- In a “major outbreak” during which 20 or more employees in an exposed workplace are diagnosed with COVID-19 within a 30-day period: Provide testing to all employees at least twice a week until no new cases are detected for a 14-day period, implement ventilation changes including increasing filtration efficiency, evaluate whether HEPA air filtration units are required in poorly ventilated areas, determine need for respiratory protection program and consider halting all or part of operations to control the virus.
- Provide testing that ensures worker confidentiality.
- Exclude employees diagnosed with COVID-19 or who have had exposure to COVID-19 from returning to work onsite.
- Employees with symptoms may return to the workplace after: At least 24 hours have passed since a fever of 100.4 or higher has resolved without fever reducing medications, COVID-19 symptoms have improved and 10 days have passed since COVID-19 symptoms first appeared.
- Employees without symptoms may return to the workplace after 10 days have passed since their first COVID-19 positive test.
- Employees exposed to COVID-19 in the workplace may return to the workplace 14 days after last known COVID-19 exposure.
- Employees are not required to receive a negative test to return to work.
- If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay and may offset payments by the amount an employee receives in other benefit payments.
- Maintain records of all COVID-19 workplace policies and COVID-19 cases.
- Maintain records including inspection records, documentation of hazard corrections and training programs.
- Record and track all COVID-19 cases with worker’s name, contact information, occupation, location of work, last date of work at workplace and date of COVID-19 test. Medical information shall be kept confidential.
- Report information about COVID-19 at the workplace to Cal/OSHA and the local health department as required by law.
- Contact the local health department when there are three or more COVID-19 cases in the workplace within a 14-day period.
- Report serious illnesses and multiple cases to Cal/OSHA and the local health department.
- Information made to other employees, employee representatives, or as otherwise required by law will have personal identifying information removed.
Before employers dismiss these standards as a slap on the wrist, beware that violations of these standards may lead to reporting by an employee. If the employee thereafter is terminated, the employee can arguably claim he/she was wrongfully terminated in retaliation for whistleblowing. This is far from an exhaustive analysis of an employer’s complicated and continually evolving obligations under federal, state and local regulations as the COVID-19 pandemic progresses. Tressler LLP can guide your business during this difficult time. We are available to help you develop a proactive return to work plan that best ensures the safety of your employees and minimizes any potential business disruptions and associated legal risks so that your business can continue operating successfully.
For more information about this article, please contact Bicvan Brown at bbrown@tresslerllp.com and Ashley Pham at apham@tresslerllp.com.