Key Points

• The new regulation covers all employees and places of employment with limited exceptions and is expected to take effect within the next two weeks.

• Employers must develop a written COVID-19 Prevention Program.

• Employers must also investigate and “respond effectively” to COVID-19 cases and notify employees and others who might have been exposed within one day.

• The regulation imposes stringent requirements for multiple COVID-19 cases and outbreaks in the workplace.

• Employers providing housing or transportation to employees must provide safety protocols such as social distancing, PPEs among other requirements.

• The regulation imposes pay right to return provisions for certain employees excluded from the workplace due to COVID-19.

Background

On November 19, 2020, after more than seven and a half hours of testimony by some 100 speakers, many of whom sought a delay in the regulation, the Occupational Safety and Health Standards Board (the “Board”) passed an extensive emergency COVID-19 regulation adding severe administrative and financial obligations to already overburdened employers. The Board seemingly ignored an apparent lack of stakeholder input, feasibility of implementation, and possible inconsistencies with laws set to take effect, including AB 685.

The regulation is the brainchild of the Worksafe Inc. and the Labor and Employment Committee of the National Lawyers Guild. On May 20, 2020, the Committee submitted Petition File No. 583 with the Board requesting that it amend Title 8 CCR to address COVID-19 safety standards. The Petition requested standards similar to California’s Injury and Illness Prevention Program regulations as well as training and reporting requirements, procedures to identify COVID-19 workplace hazards, and provide for employees who may have been exposed to COVID-19, and other preventative measures.

Summary

The regulation consists of three primary areas: 1) COVID-19 prevention; 2) multiple COVID-19 infections and COVID-19 outbreaks, including “major outbreaks”; and 3) COVID-19 prevention in employer-provided housing and transportation to and from work. We summarize these sections below, but encourage employers to carefully review the entire regulation immediately for all its details and begin preparing for compliance with it to the extent it applies to their workplaces.

The regulation covers all employees and places of employment with limited exceptions. Sections 3205, 3205.1, and 3205.2 of the regulation, regarding COVID-19 prevention and COVID-19 infections and outbreaks, apply to all employees except:

1. places of employment with one employee who does not have contact with other persons,
2. employees working from home, and
3. employees when covered by Section 5199, the Aerosol Transmissible Diseases (ATD) Standard.¹
   
   

Sections 3205.3 and 3205. 4 regarding employer-provided housing and transportation apply to all employers with limited exceptions, as noted below.

COVID-19 Prevention

Employers must implement a written COVID-19 Prevention Program, which either must be integrated into the employer’s required Section 3203 Injury and Illness Prevention Program or be maintained in a separate document. The Prevention Program must contain the following elements:

• A system for communicating COVID-19 related information to employees, including how they will communicate COVID-19-related hazards to their employees, and how employees can get tested for COVID-19, report symptoms and/or COVID-19-positive tests, and how employees at higher risk of the virus can request an accommodation;
• Identification/evaluation of COVID-19 hazards, including a screening and response procedure;
• Investigation and response to COVID-19 cases, which requires employers to contact trace, provide testing free of charge, provide notice to employees of the potential exposure, and investigate the possible causes of the exposure;
• Correction of COVID-19 hazards, including procedures for correcting COVID-19-related hazards identified in the course of its inspection after either learning of a COVID-19 positive case or concerns raised by employees;
• Employee training and instruction related to COVID-19, including benefits available to employees in the event of a COVID-19 infection; methods for preventing COVID-19 exposures, how the virus may transmit in the workplace, social distancing protocols and procedures; procedures for enforcing face coverings or face masks, and the employer’s procedures for safeguarding employees from COVID-19 where face coverings or face masks are not possible; how and when the employer will implement COVID-19 testing, or where the employee may obtain COVID-19 testing; and instructions for quarantining in the event of potential exposure;
• Physical distancing in the workplace;
• Face coverings, which employers must provide;
• Other engineering controls, administrative controls, and personal protective equipment (“PPE”), which addresses partitions, ventilation, handwashing facilities, and cleaning and disinfecting procedures;
• Reporting, recordkeeping, and access, including reporting to local health departments;
• Exclusion of COVID-19 cases from the workplace; and
• Return to work criteria.
  
  

Employee Pay and Return to Work Provision

The regulation includes pay and reinstatement rights for employee “COVID-19 cases.” It defines these "COVID-19" cases as employees excluded from work either (1) because they have a positive COVID-19 test or (2) are subject to a “COVID-19-related order to isolate issued by a local or state health official” and, in either instance, otherwise are able and available to work. The regulation provides that employers shall continue to maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job. Employers may use employer-provided employee sick leave benefits and or payments from “public sources” where permitted by law and when not covered by workers’ compensation.

There are two exceptions to the pay and reinstatement provision:

1. any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission, and
2. where the employer demonstrates that COVID-19 exposure is not work-related.
   
   

Obviously, there are countless questions that arise with these pay and reinstatement provisions. Many employers also question if these provisions exceed Cal/OSHA’s authority and jurisdiction. Hopefully, the Board will provide further guidance.

COVID-19 Infections and Outbreaks

Employers must implement the following protocols if there is an outbreak in the workplace of three (3) or more COVID-19 cases within a 14-day period until there are no new cases for a 14-day period:

• Mandatory testing of all employees in the exposed workplace during the employees’ working hours;
• Exclusion of positive cases and exposed employees from the workplace;
• Immediate investigation of possible workplace-related factors that contributed to the outbreak;
• Review of COVID-19 policies, procedures, and controls and implement changes as needed, including documentation of those actions; and
• Notification of the local health department immediately, but not later than 48 hours.
  
  

Employers must implement additional protocols if there is a “major outbreak” of 20 or more COVID-19 cases within a 30-day period until there are no new cases for a 14-day period, including twice-weekly testing, evaluation of whether respiratory protection should be required, and evaluation of whether operations should cease.

COVID-19 Prevention in Employer-Provided Housing and Transport

Employers providing housing² or transportation³ to employees must implement physical distancing, isolation, testing, face covering, cleaning, ventilation, and sanitizer requirements.

When Will the Regulation Take Effect?

The Board sent the final draft regulation to the Office of Administrative Law (“OAL”), where it will remain under review for the next 10 days. Usually, the OAL would then open the regulation up for stakeholder commentary for an additional five (5) days; however, this five day period can be bypassed if “the emergency situation clearly poses such an immediate serious harm that delaying action to allow public comment would be inconsistent with the public interest.” Once the OAL adopts a final regulation, it will be codified and enforceable by Cal/OSHA immediately. The regulation will be in effect for six months, absent further extension.

Conclusion

Covered employers should contact their counsel now regarding these regulations given the short turn-around time for compliance and given the confusing pay provisions. As always as well, if Cal/OSHA contacts an employer, or if a Cal/OSHA inspector shows up to the worksite, the employer should contact counsel.

¹ This would include, but is not limited to, skilled nursing facilities, residential care facilities for the elderly (RCFEs), primary care clinics and other outpatient medical facilities, hospitals, and employers providing emergency medical services,

² Excluding housing provided for the purpose of emergency response, including firefighting, rescue, and evacuation, and support activities directly aiding response such as utilities, communications, and medical operations, if: (A) the employer is a government entity; or (B) the housing is provided temporarily by a private employer and is necessary to conduct the emergency response operations.

³ Excluding employer-provided transportation when necessary for emergency response, including firefighting, rescue, and evacuation, and support activities directly aiding response such as utilities, communications, and medical operations.