CalOSHA Issues New Emergency COVID Regulations for Most Employers

DECEMBER UPDATE: CAL/OSHA’S NEW COVID-19 EMERGENCY REGULATIONS

Issued by Kennaday Leavitt PC | Revised December 18, 2020

COVID-19 Prevention Program (CPP):

Pursuant to the new Cal/OSHA regulations, California employers must develop, implement, and maintain a written COVID-19 Prevention Program (CPP) that includes specific policies, procedures, and/or processes to curb the spread of COVID-19.

To meet their obligations under the new temporary regulations, employers must complete all of the following tasks to identify, evaluate and correct potential workplace hazards related to COVID-19:

o Establish a mechanism for reporting COVID-19 symptoms, possible exposures, and potential hazards at the workplace, investigate potential workplace exposures to COVID-19 via contact tracing, and notify all employees and visitors of potential exposures;

o Implement reasonable measures to accommodate high-risk employees;

o Identify, evaluate, and correct potential COVID-19 hazards in the workplace, such as by implementing methods of physical distancing, providing face coverings, and ensuring proper use, for all employees and visitors at the workplace, maximizing outside air flow and/or filtration systems, implementing cleaning and disinfecting procedures for frequently touched surfaces and objects, prohibiting shared equipment to the extent feasible, providing hand sanitizer, ensuring access to adequate handwashing facilities, encouraging and allowing time for handwashing, and evaluating the need for additional personal protection equipment (gloves, goggles, face shields) and providing such equipment as needed;

o Communicate information about COVID-19 hazards and the employer’s COVID-19 policies and procedures to employees and workplace visitors; and

o Provide training and instruction to employees regarding the policies and procedures in place to protect them from potential workplace hazards related to COVID-19, how COVID-19 is transmitted, methods of physical distancing, the importance of face coverings and frequent hand washing, common symptoms, the importance of not coming to work if the employee has symptoms, how to access COVID-19 testing, and COVID-19-related benefits to which the employee may be entitled.

Employers must also comply with new record-keeping and reporting requirements, as follows:

o Report all COVID-19 cases to the local health department where the employer is located and where the affected employee resides;

o Report all serious illnesses or deaths occurring in a place of employment or in connection with any employment to Cal/OSHA;

o Maintain records of all COVID-19 cases (to include the affected employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test); and

o Maintain records of the steps taken to implement the CPP.

Furthermore, employers are required to exclude certain employees from the workplace, as follows:

o All employees exposed to COVID-19 in the workplace, for 14 days from the last known date of exposure; and

o All employees who have tested positive for COVID-19, or who are subject to an isolation order by a health official, until certain return-to-work criteria is met, as follows:

o For employees exhibiting COVID-19 symptoms, the employer must exclude them from the workplace until at least 24 hours have passed since the employee’s fever has resolved, the COVID-19 symptoms have improved, and at least 10 days have passed since the symptoms first appeared;

o For employees who tested positive for COVID-19 but never developed symptoms, the employer must exclude them from the workplace until 10 days have passed since the date of specimen collection of their first positive COVID-19 test;

o For employees under an isolation order by a local or state health official, the employer must exclude them from the workplace until the isolation period is completed (usually 10 days) or the order is lifted; and

o For employees under a quarantine order by a local or state health official, the employer must exclude them from the workplace until the quarantine period is completed (usually 14 days) or the order is lifted.*

• Note that a negative test is not required to allow an employee to return to work, nor is a doctor’s note. And, if the excluded employee is otherwise able and available to work, the employer must continue to maintain all other rights and benefits of employment, including pay.

• *On December 14, 2020, Governor Newsom issued an Executive Order that may amend the exclusion periods mandated by Cal/OSHA for compatibility with updated directives by the California Department of Public Health (CDPH) and other local health officials. It states that the exclusion period must not exceed the longer of any applicable quarantine or isolation period recommended by the CDPH or a local health officer who has jurisdiction over the workplace. As of December 14, the CDPH’s updated COVID-19 Quarantine Guidance states that employees in close contact (within six feet for a cumulative total of 15 minutes or more over a 24-hour period) to a symptomatic COVID-19 case may discontinue quarantine after only 10 days. Employers should check the local public health orders in their area(s) to see if their local quarantine or isolation periods have been reduced in accordance with the CDPH’s quarantine guidance, and continue to monitor public health orders for amended recommendations. If the local quarantine period is reduced in line with the updated CDPH guidance, employers will need to revise their CPPs.

Finally, employers must describe each of these policies, procedures, and processes in their written CPP, or incorporate them in an existing Injury and Illness Prevention Program (IIPP). Employers are encouraged to engage with their employees in the design, implementation, and evolution of their CPP, and maintain a flexible leave policy.

Cal/OSHA has provided a Model COVID-19 Prevention Program that you can access here.

Additional Requirements for Covid-19 Outbreaks:

If a local health department identifies a worksite as the location of a COVID-19 outbreak (when there are three or more COVID-19 cases in a workplace within a 14-day period), the employer must also: (1) Provide free COVID-19 testing to all employees who may have been exposed; (2) Investigate new or unabated COVID-19 hazards in the workplace, perform a review of their COVID-10 policies and procedures, and implement changes as needed to prevent further spread; and (3) Notify the local health department.

For major COVID-19 outbreaks (when there are 20 or more COVID-19 cases in a workplace within a 30-day period), the employer must offer more frequent COVID-19 testing, increase their filtering of circulated air, determine the need for a new or revised respiratory protection program, and potentially halt operations until the COVID-19 hazards have been corrected.

Application:

These emergency regulations took effect immediately on November 30, 2020, and are set to remain in effect until October 2021. They apply to all employers in California, except where: (1) The workplace has only one employee, and that employee does not have contact with other people; (2) Employees exclusively work from home; and (3) Employees who are already covered by Cal/OSHA’s Aerosol Transmissible Diseases standard (e.g. hospitals, skilled nursing facilities, medical offices, home healthcare, long-term healthcare facilities and hospices, medical transport, and the like).

Employer-Provided Housing and Shared Transportation:

Employers who provided their employees housing and/or shared transportation to and from work face additional requirements regarding physical distancing, face coverings, cleaning and disinfecting, screening, testing, and isolating COVID-19 cases as detailed in the regulations, which you can review here.

If you are unsure about whether these regulations apply to you, if you need help putting together a COVID-19 Prevention Program for your business, or if you would like to learn more about any of these requirements going forward, please contact attorney Allison M. Nye at Kennaday Leavitt PC.