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).