Cal-OSHA Approves Massive COVID-19 Emergency Safety Standards (and Paid Leave Requirements)

California’s Occupational Safety and Health Standards Board has approved emergency safety regulations placing a broad set of new obligations on most employers. The regulations are certain to be approved by the state’s Office of Administrative Law and are likely to take effect after the first week of December.

Safety standards usually allow a period for notice to and comments from interested parts of the community (such as labor, employers, and other affected entities). Not so with these emergency standards, which were released to the community only five days before approval.

The 21-page regulations can be viewed here and apply to all workplaces except where an employee has no contact with other people, works at home, or is covered by Cal-OSHA’s existing airborne pathogen standards (such as hospitals and group-care facilities).

Under the proposed regulation, employers must take immediate steps in several defined areas including:

· Communication: Employers must inquire about employees’ potential COVID-19 symptoms “without fear of reprisal,” describe procedures for accommodation, provide information about testing and consequences, and describe COVID-19 hazards and employer practices to employees and all people “within or in contact with the employer’s workplace.”

· Policies and Procedures: Employers must allow employees to participate in identifying COVID-19 hazards, implement either self-screening or a screening process where participants are masked and use only non-contact thermometers, affirmatively develop COVID-19 policies including workplace-specific evaluation of all interactions, consider methods for increasing outside air circulation for indoor workspaces, review government standards and health orders, and evaluate current COVID-19 prevention controls with periodic inspection of factors relevant to the effectiveness of the employer’s prevention practices.

· Investigating and Responding to COVID-19 Cases: Employers must maintain procedures for investigating cases in the workplace, create contact-tracing standards and procedures such as determining who may have had an exposure, provide notice of potential exposure within one business day of potential exposures to employees and independent contractors, offer testing at no cost to potentially exposed workers during regular working hours, investigate conditions that may have led to exposure, and provide unredacted personal information to government health and safety officials.

· Correction of COVID-19 Hazards: Employers must implement effective policies that correct unhealthy conditions or practices based on the severity of hazard.

· Training: Employers must provide effective training and instruction on their policies and procedures, benefits available to employees affected by COVID-19 (such as federal FFCRA benefits), the nature and transmissibility of the virus, physical distancing and masking, hygiene and the significance of COVID-19 symptoms, avoiding work, and testing when experiencing symptoms.

· Physical Distancing: such as six-foot separation, visual cues, and adjusted work processes.

· Face Coverings: use of face coverings in most situations with few exclusions for employees with relevant medical conditions.

· Workplace Controls and Personal Protective Equipment: such as “cleanable” solid partitions when necessary, cleaning and disinfecting procedures, prohibiting the sharing of PPE, additional cleaning of areas of potential exposure, and evaluation of handwashing facilities and PPE.

· Reporting, Recordkeeping and Access: Employers must provide “any related information requested” by local health officials, maintain records of steps taken to implement procedures, and maintain records of all COVID-19 cases accessible to employees and officials (with personal identifying information removed).

· Exclusion of COVID-19 Cases: Employees who have or may have been exposed to COVID-19 transmission must be excluded from the workplace, or in some cases reassigned, and employers must maintain an employee’s earnings … and all other employee rights and benefits … as if the employee had not been removed from the job. Employers may use sick leave and explore use of “benefit payments from public sources” to help meet this obligation when not covered by workers’ compensation.

· Employer-Provided Housing and Transportation: The rules also contain specific requirements for employer-provided housing and transportation.

The rules also impose comprehensive requirements applicable when there are “three or more COVID-19 cases in an exposed workplace” within 14 days or the workplace is identified by local health officials as “the location of a COVID-19 outbreak.” The requirements apply for 14 days after the last new case detected and require repeated testing of all potentially exposed employees, the exclusion of exposed employees, continued pay and benefits for excluded employees (as above), notice to public health officials, and broad investigation and corrective actions by the employer.

The emergency regulation poses two massive issues for California employers. First, all affected employers must immediately review the rules and take actions required by them including workplace assessment, creation of new policies, acquisition of new PPE, communication, and training. Second, all affected employers should begin to consider how they will address the reporting and notification requirements if there are any COVID-19 cases in their workplace, and how they will compensate the substantial number of employees who may have to be sent home with pay. There are no small-employer or industry exclusions to the law, so all employers should pay careful attention regardless of size.

We will continue monitoring the progress of the emergency standards and their impact on public and private employers throughout the state. Additional information, and Cal-OSHA’s anticipated guidance, will also be available at COVID-19 Prevention (ca.gov).

California's (Current) Wildfire Smoke Regulation

Widespread fires and unhealthy air quality currently affect millions of workers throughout the state. Surprisingly, California does not have permanent rules addressing smoke and other wildfire-related conditions. But the state has adopted an emergency regulation requiring employers to take action when air quality is affected. The regulation can be viewed here.

The emergency regulation took effect in July, 2019, and was set to expire after one year. It was readopted in 2020 and will continue through June of 2021 unless replaced by permanent rules. The status of the regulation and a proposed final rule can be monitored on Cal-OSHA’s website here.

Employers are required to follow the emergency standards when the Air Quality Index ("AQI") reports particulate matter (PM2.5) at 151 (“unhealthy”) or greater and an employer can “reasonably anticipate” that employees may be exposed to wildfire smoke. Current air quality can be viewed by location at www.AirNow.gov or similar local websites.

When covered, employers must:

1. Identify likely employee exposures to high PM2.5 levels before each shift and periodically as necessary;

2. Communicate wildfire smoke hazards to employees in a system readily understandable by all affected employees;

3. Train employees on wildfire smoke, employer procedures, PPE and other issues covered in Appendix B to the emergency regulation; and

4. Control harmful exposure by providing measures such as access to enclosed areas with filtered air, relocating outdoor work, and distributing appropriate personal protective equipment.

Some employers are exempt from the regulation, such as those with interior areas containing mechanically filtered air, enclosed vehicles with cabin air filters, localized areas below AQI maximums (such as areas above or outside unhealthy air concentrations), and workplaces where employees will be exposed for an hour or less each shift.

Exempt employers should maintain records showing the conditions that exclude them from the emergency regulation, such as plans showing HVAC filtration or records of workplace air quality monitoring.

Failure to comply with the emergency regulation could result in significant penalties, especially if employees suffer health effects attributed to exposure. This is even more significant during the current pandemic, when respiratory protection is essential to workers’ overall health. Worse, failure to comply with the standard might lead to substantial uninsured workers’ compensation liability for “serious and willful” injuries, claims that easily reach six or seven figures where the cost of medical treatment is high.

Employers should pay careful attention to the emergency regulation, their existing Injury and Illness Prevention Policies, and local air quality throughout this and other wildfire events. No easy task while also dealing with a pandemic. But it pays to remain aware of ongoing AQI smoke requirements, as wildfires will likely plague our state long after the current COVID-19 situation resolves.

Employers Consider Pay and Other Workplace Issues During Power Outages

Here We Go Again!

With a major heat wave and statewide red flag warnings, California employers again face rolling blackouts or protective power interruptions that could shut down businesses throughout the state. Employers often wonder how to pay employees who cannot work when the power goes off, especially employees who have been sent home.

Salaried Employees

Salaried employees must be paid for any day they work at least part of the day and may only lose a day’s pay when they miss an entire 24-hour period for their own reasons. Like other absences beyond their control (such as jury duty), salaried exempt employees receive their pay notwithstanding power interruption.

Hourly Employees

Hourly employees are more complicated. Employers generally do not need to pay hourly employees for time they are not working. But when an hourly employee is sent home early, or called back again after working the same day, employers usually must pay “reporting time” minimums. This often occurs when (1) an employee is sent home involuntarily prior to the end of a regularly scheduled shift (and has not worked at least half the scheduled shift length) or (2) an employee is called back after completing work earlier that day but does not receive at least an additional two hours of work. These requirements are in Section 5 of most employer wage orders (see https://www.dir.ca.gov/iwc/wageorderindustries.htm).

The good news: Employers are not required to apply the reporting time requirements when “utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer.” The requirements also exclude situations where “operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities” – which should also include mandatory fire evacuations and similar public emergencies.

Employer Considerations

Under these rules, employers may send employees home when they cannot continue operations due to power outages. They may also call employees back when power returns.

The same rules should apply to employees who are teleworking. It is possible that some employees, but not others, will be affected by local outages while working remotely during the COVID-19 pandemic.

Employers should also consider any other issues caused by outages, such as whether employees who could technically keep working should continue. For example: state heat regulations and employers' general duty to maintain a safe workplace may require some employees (such as warehouse or packing shed workers) to stop working, or to receive regular rest and recovery periods, when a heat wave knocks out power and causes high temperatures in otherwise cooled workplaces. This and other issues are discussed by Cal-OSHA at https://www.dir.ca.gov/dosh/Protecting-Workers-When-there-are-Power-Outages.html.

Power outages may also impact employers' ability to deal with pandemic precautions, such as operating cleaning equipment and maintaining air circulation/filtration. These and other issues make handling our "new normal" even more difficult in the Golden State.