Cal/OSHA has adopted new emergency temporary standards regarding COVID-19 prevention in the workplace. The new standards represent a significant escalation from prior guidance, imposing new, rigorous requirements. They will become effective immediately on November 30, 2020 if approved by the Office of Administrative Law, which we expect they will.
The new standards will apply to virtually all California employers, with exceptions for certain medical and laboratory facilities and employers who have only one employee or whose employees work entirely from home. It is critical that employers familiarize themselves with the new standards and be prepared to update their policies in time for the November 30 effective date.
Complying with the new emergency standards will be a challenge for all of us, and we are prepared to help our clients achieve compliance. On Thursday, December 3rd, we will be hosting a webinar along with Linda Duffy of Ethos Human Capital Solutions covering the new emergency standards along with other important developments in employment law for 2021. We encourage our clients to attend. You can register by following this link.
This email will address the major points of the new emergency standards.
COVID-19 Prevention Program
A central component of the emergency standards is that employers must prepare, implement and maintain a written COVID-19 Prevention Program (“CPP”), which may be integrated into their existing Injury and Illness Prevention Program (“IIPP”) or exist as a standalone document. We have already been assisting clients in drafting COVID-19 Prevention Programs, but these emergency standards impose heightened requirements and employers must now revise COVID-19 Prevention Programs already adopted. We are ready to assist all clients in either updating their existing COVID-19 Prevention Programs or drafting new COVID-19 Prevention Programs.
The emergency standards provide that the CPP must include the following:
COVID-19 Prevention Program
A central component of the emergency standards is that employers must prepare, implement and maintain a written COVID-19 Prevention Program (“CPP”), which may be integrated into their existing Injury and Illness Prevention Program (“IIPP”) or exist as a standalone document. We have already been assisting clients in drafting COVID-19 Prevention Programs, but these emergency standards impose heightened requirements and employers must now revise COVID-19 Prevention Programs already adopted. We are ready to assist all clients in either updating their existing COVID-19 Prevention Programs or drafting new COVID-19 Prevention Programs.
The emergency standards provide that the CPP must include the following:
- A system for communicating information about: COVID-19 symptoms; possible COVID-19 exposures or hazards in the workplace; procedures and policies for accommodating employees with an increased risk of severe illness; and access to COVID-19 testing and possible consequences of a positive test.
- Identification and evaluation of COVID-19 hazards, including a process for screening employees for and responding to employees with COVID-19 symptoms and a workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could possibly expose employees to COVID-19.
- Investigating and responding to COVID-19 cases in the workplace.
- Correction of COVID-19 hazards.
- Training and instruction, including information about the employer’s COVID-19 policies and procedures, COVID-19 related benefits, the ways COVID-19 can spread, and ways the risk of COVID-19 exposure can be reduced such as social distancing, use of face coverings, and sanitation/disinfection measures.
- Requirement of physical distancing.
- Requirement of face coverings. Employers must provide appropriate face coverings to employees and ensure they are worn correctly.
- Other engineering controls, administrative controls, and personal protective equipment.
- Reporting, recordkeeping and access. Employers must report relevant COVID-19 information to the local health department and must keep a record of and track all COVID-19 cases within the workplace, including the employee’s name, contact information, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. Employers must use caution to keep medical information confidential while meeting these requirements.
- Excluding COVID–19 cases from the workplace. The emergency standards impose new, stringent return-to-work requirements and create a new category of unlimited, paid leave
Employer-Provided Housing and Transportation
Employers providing housing to their employees, or transportation for employees to and from work, are subject to additional requirements. If you provide either to your employees, please contact us for more details on how to comply with the emergency standards.
Outbreaks and Major Outbreaks
The emergency standards further include requirements for employers in the event of an “outbreak” or a “major outbreak” in the workplace. An outbreak occurs when there are three or more COVID-19 cases in a workplace within a 14-day period, or as identified by a local health department. A major outbreak occurs when there are 20 or more COVID-19 cases in a 30-day period.
Outbreaks
In the event of an outbreak, an employer must provide COVID-19 testing to all employees at the exposed workplace, at no cost to employees and during the employees’ normal working hours. Employees must be tested weekly until there are no new COVID-19 cases detected in the workplace for a 14-day period.
Employers must communicate the outbreak to the local health department and provide them with the total number of COVID-19 cases, and for each case the name, contact information, occupation, workplace location, business address, hospitalization and/or fatality status, and any other information requested by the local health department. Employers must further notify the local health department of any additional COVID-19 cases at the workplace as they are detected.
An employer also must immediately investigate and determine possible workplace-related factors that may have contributed to the outbreak, as well as investigate new or unabated COVID-19 hazards. This review must be updated every thirty days that the outbreak continues, and the employer must implement changes to its COVID-19 policies in response to the findings of the investigations and/or reviews.
Major outbreaks
In the event of a major outbreak, employers must provide twice-weekly COVID-19 testing, again at no cost to employees and during the employees’ normal working hours, until there are no new COVID-19 cases detected in a 14-day period.
The same requirements regarding reporting to the local health department and conducting investigations and reviews apply. Employers experiencing a major outbreak must further undertake COVID-19 hazard correction, which must include evaluating whether to halt some or all operations at the workplace until the COVID-19 hazards have been corrected.
