COVID Workplace Safety Just Got Stricter: Cal/OSHA’s New Emergency Standard For California Employers
By Procopio Partner Marie Burke Kenny and Associate Nicholas Kawuka
The California Occupational Safety and Health Standards Board (Cal/OSHA) adopted on November 19, 2020, a temporary emergency standard imposing substantial new COVID-19 testing, reporting and documentation requirements on California employers. In an apparent over-reach by Cal/OSHA, the new standard also mandates that employees, who are excluded from work for COVID-19 related reasons, continue to receive earnings, seniority, benefits and a right to reinstatement.
When Is The New Standard Effective? This depends on when the Office of Administrative Law (OAL) approves the standard and submits it to the Secretary of State. It is anticipated the OAL will approve it and it will take effect on November 30, 2020. Once in effect, the temporary standard will last for 180 days unless extended.
What Businesses Are Covered By The Standard? The new standard applies to all California businesses except for three distinct categories of business: (1) single-employee businesses where the employee has no contact with other people, (2) businesses where employees are working remotely, and (3) businesses such as hospitals, skilled nursing facilities, clinics, medical offices, other specific health care facilities or businesses who are already covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.
What Are The New Requirements? If the new standard is adopted as anticipated on November 30, employers will need to act immediately to comply with the new standard. Here are the main action items for employers:
- Establish, implement, and maintain an effective, written COVID-19 Prevention Program, which can be made part of an existing Injury and Illness Protection Plan (IIPP) or kept as a separate stand-alone document.
Ensure that employees excluded from the workplace for certain COVID-19 related reasons continue to be paid while they are off work, and maintain their earnings, seniority, and all other employee rights and benefits, including their right to reinstatement. Unlike the California Supplemental COVID-19 paid Sick Leave Law, there does not appear to be any cap on the amount of pay that must be provided to employees. This provision may be challenged in court because it is unclear what authority, if any, Cal/OSHA has to require employers to pay wages for employees excluded from the workplace.
- Continued Earnings Exceptions: This provision does not apply when the employer demonstrates that the COVID-19 exposure is not work related or employees can be temporarily reassigned to work where they do not have contact with other persons. In addition, benefit payments from public sources may be considered in continuing earnings for excluded employees.
Offer no-cost testing for all employees potentially exposed to COVID-19 in the workplace and provide them with information about COVID-19-related benefits and other employee rights and benefits (including continued earnings).
- Even if there has been only one COVID-19 case in the workplace, employers are required to offer free COVID-19 testing during working hours to all employees potentially exposed to COVID-19 exposure in the workplace. Employees must also be informed of the possible consequences of a positive test.
- Communicate clearly to employees that employees should report, without fear of reprisal, COVID-19 symptoms, possible exposures, or hazards in the workplace, and inform employees about the employer’s COVID-19 policies and procedures.
Develop and maintain a screening process for employees with COVID-19 symptoms, and use face coverings during screening if the employer conducts screening at the workplace.
- This provision permits employers to allow employees to self-screen prior to entering the worksite. However, employer will need to train employees on how to perform the self-screen and document screening policies and procedures.
- Notify employees who were potentially exposed to COVID-19 within 24 hours of learning of such potential exposure.
- Train employees on COVID-19 policies and procedures, COVID-19 related benefits, recommended guidelines about COVID-19, and the necessity of taking a test and avoiding the workplace if the employee is experiencing symptoms.
- Provide employees with face coverings and require that they be worn in the workplace unless exempted by law or practicalities of the workplace. For employees unable to wear masks or face coverings, provide face-shields or other alternative protection. Allow employees who wish to wear masks or face coverings (even when not required by law) to do so, unless doing so would create a safety hazard at the workplace.
- Implement physical distancing and install cleanable workplace partitions if recommended social-distancing guidelines are not feasible in the workplace.
- Maximize quantity of outside air flowing into indoor workplaces unless it would hurt employees because of excessive pollutants, heat or cold.
- Determine the need for and provide additional handwashing facilities, and encourage employees to wash hangs hands for at least 20 seconds each time.
- Evaluate the need for and where possible, provide personal protective equipment, including, but not limited to, gloves, googles, face shields, respiratory protection equipment, respirators, and eye protection equipment.
- Report and maintain records of COVID-19 cases as required by law and avail the written COVID-19 Prevention Program upon request by the employee, the employee’s representatives, or authorities.
- Track all COVID-19 cases including personal name and contact information of employees, where they worked and when they last worked and details related to their positive COVID-19 test.
- Ensure that employees who have tested positive for COVID-19 or have been required to isolate by the local health department, do not return to the workplace until they meet certain criteria including no fever of over 100.4 degrees for 24 hours, and reduced or no symptoms.
- Ensure that employees who were exposed to a COVID-19 case are excluded from the workplace for at least 14 days after their last exposure.
- Implement specific testing, investigation, notification, reporting, return to work criteria, and other obligations for workplaces with “Multiple COVID-19 Infections and COVID-19 Outbreaks” or “Major COVID-19 Outbreaks” as those phrases are interpreted under the new standard.
What To Do Now? California employers governed by this new standard should act quickly to develop a written COVID-19 Prevention Program or amend their existing Injury and Illness Prevention Programs to include written COVID-19 prevention protocols. Such protocols should include physical distancing, face covering, PPE, training, tracking, testing, reporting and notification provisions that comply with the new Cal/OSHA temporary standard. Employers should also thoroughly train employees regarding COVID-19 policies and procedures including self-screening and return to work criteria. Although Cal/OSHA has promised to publish FAQs, guidance and a model COVID-19 Prevention Program, it is unclear when those will be available. In the meantime, we recommend that employers work closely with employment counsel to discuss options for complying with the new standard.
Marie Burke Kenny is a Partner with Procopio and the Leader of its Labor and Employment practice group. Marie represents employers in wage and hour class actions and litigation involving wrongful termination, discrimination, harassment, retaliation and unfair competition claims. She also has extensive experience counseling employers regarding all aspects of the employment relationship, including performance management, termination, contracts, workplace investigations, medical issues, leaves of absence, wage and hour audits, compensation review, workplace training and employment policies and practices. She works with employers to develop strategies to prevent employment claims and create effective defenses to litigation. In addition, Marie is a member of Procopio’s COVID-19 Legal Resources Team.
Nicholas Kawuka is an Associate in Procopio’s Labor & Employment practice group. He represents employers in all types of employment litigation, including wage and hour class and representative actions and individual lawsuits for wrongful termination, harassment, discrimination, and trade secret misappropriation. Nicholas also counsels clients on day-to-day employment, privacy and data security matters.